Anderson v Chief Commissioner of State Revenue

Background

1. The Applicant exchanged contracts for the Goulburn Property on 21 March 2019.
2. On 9 April 2019, the Respondent approved her application for a transfer duty exemption for the purchase of the Goulburn Property under the Scheme.
3. Settlement took place on 18 April 2019 and the Applicant's title to the Goulburn Property was registered on that date.
4. The Applicant purchased the Goulburn Property subject to an existing tenancy.
5. On 10 October 2019, the Applicant and her partner, Christopher Anderson, entered into a one year lease for an apartment in Dulwich Hill in NSW. The lease commenced on 11 October 2019.
6. The Applicant says that she moved into the Goulburn Property on 28 December 2019 and resided there until 28 June 2020. That matter is discussed below.
7. During that period the Applicant was employed with the Royal Prince Alfred Hospital in Camperdown, Sydney.

The Investigation by the Respondent

1. The Respondent sent a notice of investigation to the Applicant on 24 October 2023 to determine if she met the residence requirement.
2. The Applicant, who was overseas at the time with her partner, requested an extension of time to respond. That was denied.
3. She provided a Residence Declaration dated 31 October 2023 together with documents in support of her claim that she occupied the Goulburn Property as her principal place of residence.
4. In the Residence Declaration: 1. she ticked the boxes acknowledging that: (a) she understood the requirement to "occupy the home as [her] principal place of residence for a continuous period of at least 6 months, commencing within 12 months of settlement …"; (b) she understood that if the residence requirement had not been met, she could be required to repay the first home benefits received which may include penalty tax and/or interest; and (c) she could be liable for substantial penalties for making false or misleading statements. 2. she answered: 1. "Yes" that she occupied the (Goulburn) property; 2. that she started residing in the property on 4 January 2020, and stopped living in the property on 28 June 2020; and 3. that she lived in the property during the period. 1. in response to the question "did you occupy another property as a residence during the above period" (my emphasis) 1. she answered "Yes"; and provided the "Alternate residence address" for an apartment in New Canterbury Road, Dulwich Hill (Dulwich Hill); and 2. for "Days per week as residence" she responded "0-3"
5. On 9 November 2023, the Respondent: 1. determined that the Applicant did not satisfy the residence requirement; 2. did not exercise the discretion under s 76(2) of the Duties Act; and 3. issued a notice of assessment (Assessment) for $16,170.55, comprising transfer duty ($9,968.50), penalty tax ($2,984.55) and interest ($3,217.50). The penalty was increased by 20% (from the default rate of 25% to 30%) under s 30(1) of the Taxation Administration Act 1996 (NSW) (TA Act).
6. On 4 December 2023 the Respondent approved the Applicant's request to pay the Assessment debt in monthly instalments. The first payment was 8 December 2023 and the last was 24 May 2024. The letter advised that: Under this arrangement, you will still be charged interest on the outstanding amount at the interest rate current when each payment is due.
7. On 7 January 2024, the Applicant objected to the Assessment (Objection), providing 7 attachments. In summary, she said all 3 reasons given for the assessment decision were incorrect (my emphasis, extracts): 1. Regarding the electricity connection (which the Respondent said occurred on 6 February 2020), the records were incomplete, and there had been a transfer from a previous provider, ActewAGL:. My electricity account [with Origin] was established on 13 January 2020 (attachment 1) Origin Energy completed their routine meter read on 6 February 2020 and thus only invoiced me from 6 February 2020, however my contract and service was established on 13 January 2020 (attachment 1). My contract with Origin Energy states 'This can take a while (sometimes up to several months); I have discussed this with Origin Energy and the Energy and Water Ombudsman NSW who have confirmed that Origin Energy do not have billing rights until they complete the routine meter read. Due to almost 4 years having passed, it is no longer possible for a billing request to be made to the previous retailer (ActewAGL) for the first month of my residency (attachment 2); 1. In regard to her average daily electricity usage: I do not disagree that my usage would have been extremely low, as I was working full time in Sydney during my residency period as the COVID-20 pandemic prohibited me from being able to work from home from January 2020 to August 2022. I was home primarily to shower and sleep, gardening and making home repairs on weekends (attachment 3) during an incredibly stressful time as a healthcare worker responsible for coordinating the COVID-19 response within my role as Business Manager for Cardiology at Royal Prince Alfred Hospital. I also did not own appliances which would contribute to what may be considered standard electricity usage. For example: clothes dryer, heater, dishwasher, hair dryer, electric blanket, computer, air fryer, coffee maker and/or wired smart devices. 1. Regarding her drivers licence (said to reflect her Ulladulla address): This is not correct. I have purchased a certified copy of my Transport NSW address history (attachment 6) which does not show an Ulladulla address… I updated my address with RMS on 13 January 2020…
8. Following a request for further documentation and information, the Applicant advised the Respondent on 4 March 2024 that she made an error in her statutory declaration of 31 October 2023 and had moved into the Goulburn Property on 28 December 2019 and not 4 January 2020. She also provided: 1. more documents and information supporting her claim that the Goulburn Property was her principal place of residence; and 2. the residential tenancy agreement which she and her partner had signed for the Dulwich Hill apartment.
9. On 5 March 2024 (the following day), the Respondent disallowed the Applicant's objection in full. In the Objection Decision, the Respondent said (inter alia): In your declaration dated 31 October 2023, you declared that you resided at the Goulburn property from 4 January 2020 to 28 June 2020. However, in your email to the Chief Commissioner dated 4 March 2023, you advised that you actually resided at the Goulburn property from 28 December 2019 to 28 June 2020 ('the declared residency period'), being a period of exactly six months….
10. The Applicant filed an application to the Tribunal on Monday 6 May 2024. This was within the required 60 day period under s 99(1) of the TA Act, noting the due date fell on the weekend: s 36(2)(a) of the Interpretation Act 1987 (NSW).

Materials before the Tribunal

1. The Respondent prepared a Court Book (2 volumes) (referred to in these reasons as "CB") which included: 1. the Applicant's application to the Tribunal filed on 6 May 2014 (A1) 2. the Respondent's documents filed pursuant to s 58 of the Administrative Decisions Review Act 1997 (ADR Act) on 3 June 2024 (s58 Docs) in two volumes (R1-1 and R1-2); 3. the Applicant's submissions and evidence (accompanying documents) filed on 2 July 2024 (A2); 4. the Respondent's submissions (R2) and Tender Bundle (R3) - which included further information produced under summonses - filed on 2 August 2024; and 5. the Applicant's submissions and evidence in reply filed on 132 August 2024, which included Statutory Declarations of her partner, father, mother, grandmothers and sister (A3).
2. The Respondent also filed a Bundle of Authorities on 29 August 2024 (R4).
3. The Applicant and her partner (Christopher Anderson) attended the hearing and were required for cross-examination. The Applicant's father (Darren Anderson) attended by phone and was required for cross-examination.

The key arguments raised by the Respondent

1. In support of its position that the Applicant had not discharged her onus of proof that she occupied the Goulburn Property as her principal place of residence for a continuous period of 6 months the Respondent pointed to (inter alia): 1. her 31 October 2023 Residence Declaration, stating that she moved into the Goulburn Property on 4 January 2020: although the Respondent accepts she moved out of the Goulburn Property on 28 June 2020, the period fell short of the 6 month requirement. It was not accepted that there was evidence to establish the Applicant's changed position from 4 January 2020 to 28 December 2019, resulting in a period of "exactly six months" as required by the statutory test. 2. Water and electricity - which the Respondent submits is significantly less than that of the average one-person household, and contends that the Origin electricity account was only set up on 13 January 2020; 3. Gas bill - although the Applicant relies on gas usage as mitigating the low electricity usage, no details were provided of the appliances used at the Goulburn property to explain the breakdown between gas and electricity usage. Further, the gas bill provided only covers one month of the alleged residency period. (This bill showed a daily usage of 33.39 MJ for the period 27 May 2020 to 2 July 2020.); 4. Financial records analysis - the expenditure records demonstrated limited purchases in the Goulburn area, the majority being in Sydney; and the absence of fuel purchases called into question her contention that she spent 4-7 days a week at the Goulburn property; 5. The Applicant had home building, but not contents, insurance for the Goulburn Property, "which is not consistent with her use of the Goulburn Property as a principal place of residence"; and 6. The Applicant had "exclusive possession of the Dulwich Hill Property under a residential tenancy agreement .. [and] made weekly rent payments of $325 for the Dulwich Hill Property".
2. The Applicant's evidence, submissions and points in response are addressed in my consideration below.

Jurisdiction and onus of proof

1. This is an application under s 96 of the Taxation Administration Act 1996 (NSW) (TA Act) for an administrative review of the Assessment. The Assessment was objected to by the Applicant. The Tribunal's administrative review is therefore conferred by the Administrative Decisions Review Act 1997 (NSW) (ADR Act), and the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act).
2. The Tribunal's task is to decide what the correct and preferable decision is having regard to the material before it: ADR Act, s 63(1). The Applicant has the onus of proving her case: TA Act, s 100(3). That means she must prove all matters necessary for the Tribunal to answer the statutory question in her favour: Cornish Investments Pty Limited v Chief Commissioner of State Revenue (RD) [2013] NSWADTAP 25 at [36].
3. The standard of proof is the balance of probabilities.
4. Section 100(2) of the TA Act provides that neither the Applicant nor the Respondent are limited in the present application to the grounds of the objection.

Findings of Fact - General Chronology and the 6 month requirement

1. These findings are from the totality of the evidence before me, including cross-examination and questions from me.

The position prior to the purchase of the Goulburn Property

Marital status and family

1. The Applicant is not married. Her partner, Christopher Anderson, shares the same surname by coincidence. They have been in a relationship for around 10 years.
2. At all relevant times, the Applicant's parents lived at the family home in Ulladulla. Both of them worked full time. Her mother owned a florist business. The Applicant had close ties to her parents, and to the local community. She returned there regularly, including to attend community events, and to visit her ailing grandfather who lived nearby in Milton with his wife. She regarded this as a place of residence - she maintained her bedroom there, and the address was used as her place of residence for the electoral roll, drivers licence (later changed to Goulburn), bank statements and other correspondence.
3. The Applicant's sister lived in Canberra, and the Applicant would visit her and shop in Canberra from time to time.

Work location and ties to Sydney

1. At all relevant times, the Applicant was employed by NSW Health. As stated above, her role was Business Manager for Cardiology at Royal Prince Alfred Hospital (RPA) and her work location was Camperdown. She did not work on weekends. She would usually finish work around 5pm.
2. Her work colleagues were in Sydney, as was her partner. She would drive to Sydney from her residence in Ulladulla (approx. a 3 hour drive). However, her partner lived in St Peters in an apartment, furnished by him, so she would regularly stay there as well. There is no evidence as to the proportion of time spent at each location during that period; she said that during 2016-2019 she was "most of the time in St Peters" at that stage, but (as noted above) she maintained her Ulladulla address for her drivers licence, electoral roll and other correspondence. In any event, she had a place to live in Sydney. She socialised in Sydney with her partner and friends there. She would also socialise in Ulladulla at community events and with her friends and family there, as that was where she grew up.

Acquisition of the Goulburn Property

1. Her partner and parents travelled to Goulburn to join the Applicant when she bought the Goulburn Property. The Applicant said she "wanted to live the dream in Goulburn". She had decided to purchase in Goulburn for several reasons: the property prices were of course lower than Sydney, and she managed to buy a cottage there with a garden; she was within a "triangle" between Sydney (work and partner), Ulladulla (parents / grandparents) and Canberra (sister); and the drive to Sydney was 2 hours "give or take 15 minutes" from Goulburn, significantly less than from Ulladulla.
2. As noted above, the Goulburn Property was tenanted when it was purchased. The Applicant thought it was on a month-to-month lease and had planned to move in as close as possible after settlement in April 2019. However, it turns out that it was a fixed term lease expiring in December 2019. The Applicant and her partner said, and I accept, that she hadn't been told about that, and that delayed ("messed up") her plans to move in immediately after settlement.

Lease of the Dulwich Hill Apartment

1. The St Peters apartment had a black mould issue. It caused problems for her partner, who had respiratory problems and asthma, and he needed to find another place to live quickly.
2. He found an apartment in Dulwich Hill. On 10 October 2019, the Applicant and her partner, Christopher Anderson, entered into a one year lease for an apartment in Dulwich Hill in NSW. The lease commenced on 11 October 2019.
3. At that stage, the Goulburn Property was still tenanted. The Applicant paid half the rent ($325 a week). They did not have a joint bank account based on the materials before the Tribunal.
4. Upon moving to Goulburn, the Applicant continued to pay half the rent for Dulwich Hill because she wanted to be able to stay there, and because she was the "breadwinner" of the relationship.
5. As with the St Peters apartment, the furniture etc that was moved into Dulwich Hill belonged to her partner. The utilities were all connected solely in her partner's name. I saw no evidence that she paid or contributed to those bills, including from the financial records.

Tenants vacate the Goulburn Property

1. The tenants vacated the Goulburn Property on 20 December 2019. That has been confirmed by the real estate agent in correspondence with the Respondent on 3 November 2023, who said (inter alia): Tenants vacated the property on 20/12/19 we completed outgoing inspection and finalised the tenancy from this point to hand to the landlord. … From our records it indicates the landlord moved in after the tenants vacated in December 2019

Christmas in Ulladulla

1. The Applicant spent Christmas of 2019 with her family at Ulladulla. It was around the time of the catastrophic "Black Summer" bushfires that swept through the south coast area. Her partner did not go - they had a "big argument" and she drove there on her own. Roads were opened and closed at various times. There was a lot of smoke, which would have aggravated his asthma and respiratory problems and been potentially dangerous.

28 December 2019 - the Applicant moves in to the Goulburn Property

1. On 28 December 2019, the Applicant moved in to the Goulburn Property. I accept the evidence of the Applicant set out below, supported by the statutory declaration of her parents and oral evidence before the Tribunal. 1. The Applicant's tenants had left by 20 December 2019 and the keys were available for collection (email exchanges); so she had access from that date; 2. The Applicant and her father drove from Ulladulla to Goulburn, in two separate vehicles, on 28 December 2019. She took all of her items from Ulladulla over to Goulburn, plus more. The Applicant stated (CB 730): a. On 28 December 2019, my father assisted me by moving the following items from Ulladulla to the Goulburn Property in his car and trailer: i. 1 x double bedframe; ii. 1 x double mattress; iii. 2 x timber bedside tables; iv. 2 x timber cabinets; v. 1 x dining table; vi. 4 x dining chairs; vii. 1 x fridge; viii. 1 x washing machine; ix. Various kitchen utensils x. Pillows and linen. b. That same day (28 December 2019), I moved the following items [from Ulladulla to the Goulburn Property] in my car: i. 1 x microwave; ii. 1 x clothing rack; iii. 2 x garbage bins; iv. 1 x compost bin; v. 1 x dish rack; vi. 1 x bookshelf; and vii. My personal affects. 1. Her mother (who was not required for cross-examination) said in her statutory declaration (at CB 760): While at home with the family for Christmas she sorted out what to take back to Goulburn. Lainie and her father loaded the car and trailer with her bedframe, mattress, bed, bedside tables, fridge, microwave, household items, linen, cutlery and clothing. They set off on the 28/12/19 to set up her new home at [address] Goulburn. 1. The Applicant and her father unloaded and moved everything in to "set up her new home" that day. Her father said they "moved items in and gave her house a once over". The Applicant said she was disappointed at the state of the Property, which was not up to her standard. 2. The Applicant settled in and spent the night of 28 December 2019 at the Goulburn Property. The father did not stay, returning because of the fires. The Applicant said that she also returned to Ulladulla the following day (29 December) to assist with fire emergency preparations. She said, and I accept, that she was concerned "that my family home may be destroyed" and they were on standby to evacuate. She returned to Goulburn on 30 December; 3. She spent New Year's Eve with her partner in Sydney, before returning again to Goulburn in the New Year.
2. I also find that the utilities were already connected (gas, water and electricity) when the Applicant moved in on 28 December 2019, with the Origin electricity account being set up later by way of a transfer from the existing supplier, ActewAGL.

January 2020

1. The Black Summer fires continued through early January. For this reason, the Applicant returned several times to Ulladulla from her house in Goulburn.
2. In early January, additional (but non-essential) items of furniture were collected from Canberra and moved into the Goulburn Property in early January 2020. As stated by her father at CB 764 (and supported by his oral evidence, and statutory declarations of the Applicant's sister at CB 767 and mother at CB 760): During early January 2020 we picked up from our other daughter in Canberra a TV unit, TV and second bed. Plus purchasing a second hand lounge suite and coffee table which we delivered to Lainie in Goulburn.

28 June 2020 - Applicant moves out of the Goulburn Property

1. It is not in dispute that the Applicant moved out of the Goulburn Property on 28 June 2020.

Explaining the incorrect date of 4 January 2020

1. I have therefore found that the 6 month period has been satisfied, as the Applicant moved into the Goulburn Property on 28 December 2019.
2. However, there is clearly an inconsistency between this date, and the date previously declared of 4 January 2020. It is not disputed that the Applicant was overseas with her partner ("travelling in Ireland") when the Notice of Investigation was received from the Respondent by email, and had requested an extension to respond, which had been refused. 1. In her very first communication with the Respondent, on 27 October 2023, in which she requested an extension to respond to 13 November 2023 due to difficulty obtaining all the information requested, she answered the "preliminary questions" immediately which included this response: Did you live in the grant property for a continual period of 6 months within the first 12 months? Yes. 1. In response to her request for an extension, she was advised in an email on 30 October 2023 that: Any delays will be seen as hindering the investigation. Please provide the information to this email address as soon as possible. 1. In completing the Residence Declaration, the Applicant recalled that she had moved into the Goulburn Property on "the Saturday after Christmas". I accept her evidence that when she checked what that date was (on her phone calendar, at the time of completing the declaration) - she simply made an error, and calculated the date to be that of the following Saturday (the Saturday after New Years Eve), which was 4 January 2020, rather than the correct date of 28 December 2019 (the Saturday after Christmas). That was why it was exactly one week out. 2. Her drivers licence address was updated on 13 January 2020. On the basis that the 14 day period from 28 December 2019 expired on Saturday 11 January, this matched the 14 day period required under Reg 122 of the Road Transport (Drivers Licensing) Regulation 2017 (NSW).
3. In that context, I also accept her oral evidence that she was under pressure to respond, had not realised the date was incorrect at the time, and therefore advised the Respondent of the mistake when she realised. 1. That "realisation" appears to me to have been prompted by the email dated 5 February 2024 from the objection team requesting additional information (CB 434), which drew the issue with the commencement date directly to her attention for the first time (extract, emphasis in original): The Chief Commissioner must be satisfied that you used and occupied the Goulburn property as your principal place of residence for a period of six continuous months commencing within 12 months after completion of the agreement or transfer (18 April 2019) so as to satisfy the residence requirement prescribed in section 76 of the Duties Act 1997. In your statutory declaration of 31 October 2023 ("the statutory declaration") you declared that you resided in the Goulburn property as your principal place of residence from 4 January 2020 to 28 June 2020 ("the relevant period"), being a continuous period of only 5 months and 24 days. To complete our review of your objection, please provide the following documentation: 1 Please provide written confirmation outlining the dates you moved into and moved out of the Goulburn property. [2 - 8] … Note: Pursuant to section 50 of the TA Act, a person must not - a. Make a record required to be made by a taxation law that comprises or contains matter that the person knows is false or misleading in a material particular, or b. Include in a record required to be made or kept by a taxation law matter that the person knows is false or misleading in a material particular. Maximum penalty - a. 500 penalty units for a first offence, or b. 1,000 penalty units for a second or subsequent offence. 1. On 4 March 2024, the Applicant responded to all the questions (CB 441), and advised that she had made an error: I moved into the Goulburn property on 28 December 2019 (1 week prior to that previously declared which was an error) and moved out on 28 June 2020.

Did the Applicant continuously occupy the Goulburn Property as her principal place of residence for the period of 6 months?

1. Where a person has more than one place of residence, which of those residences will be the "principal place of residence" is dependent upon the respective rights in respect of the properties, the strength of ties and connection with the residence including where family members reside, and the nature, extent and quality of the occupation at each residence.
2. A leading authority on the concept of "principal place of residence" is Chief Commissioner of State Revenue v Ferrington (GD) [2004] NSWADTAP 41. In that case, an Appeal Panel of the former Administrative Decisions Tribunal considered the meaning of the phrase in a similar, but slightly different, statutory context.
3. The Appeal Panel considered a number of decisions under various pieces of State, Territory and Commonwealth legislation, including the Rates and Land Tax Act 1926 (ACT) and the First Home Owners Act 1983 (Cth), and then said at [41]-[42] (most citations omitted): [41] Care must be taken in applying the principles discussed in these diverse cases to the meaning of 'principal place of residence' under the [FHOG Act] 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. [42] First, the words 'principal place of residence' should be given their ordinary meaning in the context in which they appear. … Secondly, consideration of whether a person has been residing or occupying premises as their principal place of residence is to be assessed objectively, in the light of the circumstances relating to the actual occupation of the dwelling. … Thirdly, the intention of the person concerned, gauged objectively, is relevant but not determinative of the issue. … Fourthly, to occupy a home as 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. … Fifthly, the short length of a person's residence, while relevant, is not determinative of the issue. … This is so since a recipient's occupation of a home, while short, may have the requisite degree of permanence to it. But that will not happen if, when considered objectively, the occupation was transient, temporary, contingent or of a passing nature, or for some other purpose. One may occupy premises for a short time on a transient, temporary, or contingent basis, but one can also occupy for a short time as one's principal place of residence. It is the nature of that occupation which provides the element of permanence. The fact that a period of actual occupation is short, as in the present case, will in practice make it harder for a recipient to show that the occupation was as his or her principal place of residence, but it will not make it impossible, as [Re Gaines and Secretary, Department of Health, Housing and Community Services [1992] AATA 197] 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: Gaines. In [Bates v Chief Commissioner of State Revenue [2004] NSWADT 13] 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.
4. The statute in question in that case required an applicant to "occupy the home … as the applicant's principal place of residence within twelve months after completion of the eligible transaction …". Unlike the Duties Act provision I am considering, the statute did not also require a 6-month continuous period of occupation. Rather, occupation of the home as the principal place of residence, even for a short period, could be sufficient. The quotes from Ferrington above (particularly those relating to the fifth and sixth considerations) must be read having regard to this context.
5. Nonetheless, the Applicant must establish, on the balance of probabilities (more likely than not), that she occupied the Goulburn Property as her principal place of residence for a continuous period of 6 months. The relevant 6 month period, as found above, is 28 December 2019 to 28 June 2020.

The sole property owned by the Applicant

1. The Goulburn Property was the only property owned by the Applicant. The Dulwich Hill apartment, discussed further below, was leased (in the names of the Applicant and her partner).

Not tenanted / full legal occupancy

1. The previous tenants vacated the Goulburn Property prior to the Applicant's stated period of residence, and it was not leased again until after the accepted "end date" of 28 June 2020. Nor was any rental income disclosed on the financial records during the relevant period.
2. The Applicant therefore had full legal and exclusive occupancy of the Goulburn Property for the relevant 6 month period.

Furniture, Appliances and the state of the Goulburn Property

1. The furniture and other items that were moved into the Goulburn Property from her family home in Ulladulla were sufficient to establish the Goulburn Property on 28 December 2019 as her place of residence.
2. In Re Ziino v Commissioner of State Revenue [2004] VCAT 1707, there was a finding that "While [the taxpayer] had some furniture in the place, he did not have essential items such as a refrigerator or a stove." That was not the case here. The Applicant had a refrigerator, and the existence of a stove is confirmed in the statutory declaration of Maureen Abercrombie (the Applicant's maternal grandmother) describing how she taught the Applicant how to master the art of cooking scones, 4 batches in all which "required another trip to the supermarket to buy more ingredients" (CB 770).
3. See also Yen-Cheng Chuang & Anor v Chief Commissioner of State Revenue [2009] NSWADT160 (Yen-Cheng Chuang) at [24] where only "a few items of furniture" were present at the property and "he only brought a few personal essentials to the property and … all his other belongings remained at the residence occupied by his wife and children".
4. Further, contrary to cases such as Zgrivets v Chief Commissioner of State Revenue [2023] NSWCATAD 314 (Zgrivets), the Goulburn Property was fully habitable during the 6 month period. In Zgrivets, it was found that the home was "sparsely furnished", the kitchen was "mostly unusable", the bathroom "quite bad but somewhat functional". It was this combination of facts that led to the conclusion that the occupation was with "such a light touch that it is difficult to describe her as having lived there, or resided there." No relevant renovations of the Goulburn Property took place during the relevant period, although the Applicant and her family attended to gardening, minor maintenance and other matters during the relevant period (CB 760, 761, 764, 770).

The Intention of the Applicant, and the Dulwich Hill lease

1. The Respondent submitted, under the criteria of "intention", that the fact that the Applicant entered into a 12 month lease of the Dulwich Hill property and continued to pay rent there during the period she claimed to have resided in the Goulburn property was not consistent with the Applicant intending to occupy the Goulburn Property as her principal place of residence. The Respondent also cross-examined the Applicant regarding her entry into a 12 month management agency agreement which she signed with the Goulburn agent on 17 April 2019, noting that it provided full legal authority to the agent to enter into a new lease of the property without further authorisation from the Applicant.
2. The Applicant did not dispute that she was a co-signatory to the Dulwich Hill apartment, with her partner. Nor that she paid half the rent, as was also clear from the financial records.
3. The Applicant, in her oral evidence, was very open about the reason for this. Her partner was both working and studying part-time at the time, as well as volunteering at night, and was earning less than her. She regarded herself (meaning no disrespect to her partner) as the "breadwinner" and took it upon herself to pay half of the rent, even though he lived there full time and she only spent limited days there.
4. Although the lease was co-signed, the phone and utility accounts were solely in the name of her partner. The furniture in the Dulwich Hill Property at the relevant time was all his, as confirmed in his oral evidence.
5. In further support of the intention to occupy the Goulburn Property as her principal place of residence was: 1. Her family and partner's attendance with the Applicant in Goulburn to celebrate the signing of her contract of sale for the Goulburn Property (CB 752 at [3]), and their numerous references to the Goulburn Property as the Applicant's "home" in their statutory declarations; and 2. Her stated frustration at finding that a lease for the Goulburn Property would continue until December 2019; 3. Her partner's statutory declaration at [4], [15] and [18] (CB 752), which included the following regarding her "move to Goulburn" in December 2019: This was a point of contention for us as I was of the view that moving to Goulburn would take away from the time we spent together, which was steadily decreasing due to clashing work schedules. 1. The references to the previous location of her "home" being Ulladulla, and not Dulwich Hill. In this regard, her father stated (CB 764): My oldest daughter, Lainie, has lived at [Ulladulla address] since birth, other than some time spent away at Uni in Wollongong up until the purchase of her first home at [address] Goulburn.
6. I therefore find on the balance of probabilities that the intention of the Applicant, viewed objectively, was to occupy the Goulburn Property as her principal place of residence, during the relevant 6 month period, notwithstanding her entry into the Dulwich Hill lease and payment of half the rent. This position can be contrasted with the overall facts considered in Zakariya v Chief Commissioner Office of State Revenue [2003] NSWADT 26 where of where Needham J concluded at [18]: The phrase "principal place of residence" does not assume that an applicant need only live at one place, but that she or he may have two or more places of residence. However, the grant may only be paid in relation to the "principal" one of those places; that which the applicant regards as his main residence or home. From the corroborating evidence such as the address of the applicant shown on the contracts for purchase and sale of the Eaglevale property, and from the lack of any corroborating evidence as to his use of the Eaglevale property as his mailing or other address, it appears that the Eaglevale property was a subsidiary and not a principal place of residence for the applicant.
7. Objectively, her decision to continue paying half the rent and also to remain on the lease would - even in the unlikely event of an end to the relationship - entitle her to stay at Dulwich Hill when she wished to. This would be a factor given her employment in Sydney.
8. In respect of the agency agreement, I accept the Respondent's position that its legal effect was to allow the agent to sign up a tenant without any requirement to consult with the Applicant. This was not the Applicant's view of the matter who, when pressed on this particular point, did not understand it to have that effect. I accept, as a non-lawyer, she may have held that view. But the agency agreement dealt also with the day-to-day matters concerning the existing tenancy (rent collection, repairs, post-tenancy inspection, payment of Council fees from rent received, details of the Applicant's account for receipt of net rent etc) and the "additional instructions" requested by the Applicant went only to maintenance and repairs: Lainie's father is to attend to all maintenance items to be arranged through Lainie aside from Plumbing issues or emergency electrical issues. Lainie is to be called and or texted prior to works being done on the house, including emergency repairs.
9. As noted above, the Applicant was frustrated to learn the lease was ongoing. It is therefore likely this lease was signed, the day before settlement on 17 April 2019, upon learning this was the case. In this context, I do not see this of any significance in circumstances where the Applicant was aware of her obligation to move into the house within 12 months.

Addresses used on documentation

1. As noted above, the Applicant changed her drivers licence address from Ulladulla to the Goulburn Property on 13 January 2020. Gas and electricity bills were sent to her Goulburn address, as were council water notices (CB 259-268) and Qudos Bank statements (CB 216-236).
2. There was no relevant evidence that the Applicant had made a declaration within the 6 month period that her residential address was other than the Goulburn Property; with the exception that the Dulwich Hill address was used if / when deliveries were required to be sent there: c.f. Yen-Cheng Chuang at [26] regarding declarations of another address on incoming passenger cards.
3. Her electoral roll was not changed, but in any event it was recorded as Ulladulla, and not Dulwich Hill. Similarly, other addresses not being changed from Ulladulla due to either convenience and/or failure to do so (on the basis that primary contact was email rather than post) is not of major significance in my wider analysis where the proper enquiry has shifted from Ulladulla to Dulwich Hill as her possible alternative and "principal" place of residence. As stated by Gzell J in the Supreme Court decision in Flaracos v Chief Commissioner of State Revenue [2003] NSWSC 68 at [17]: The evidence before me puts a different complexion upon the material available to the Chief Commissioner when he made his assessments… The fact that some of his correspondence, the registration of his motor vehicle and, for a time, his driver's licence, were directed to his mother's address was inconclusive. The plaintiff put on evidence that other correspondence, including water bills and rate notices, were addressed to him at his Peakhurst address.
4. I also find that the address on her income tax return (also Ulladulla) was irrelevant, because no income tax return was lodged during the relevant period.
5. The Applicant stated on her GIO car insurance (also addressed to the Goulburn Property) that her motor vehicle was parked overnight at the Goulburn Property.

Home and home contents insurance

1. The Applicant took out home building insurance on the Goulburn Property. However, regarding home contents insurance, the Respondent submitted: In respect of evidence regarding the nature of insurance held, the Applicant had home building, but not contents, insurance for the Goulburn Property, which is not consistent with her use of the Goulburn Property as a principal place of residence.
2. I accept the submissions of the Applicant that the absence of home contents insurance is not inconsistent with her occupation of the Goulburn Property as her principal place of residence. In this regard: 1. The Applicant had no prior history of taking out home contents insurance. 2. In Ferrington at [4] the Appeal Panel referred to McKellar v Chief Commissioner of State Revenue [2004] NSWADT 22 (McKellar) where the Tribunal found in favour of the taxpayer despite having "insured the building, but not the contents, as [McKellar] did not have a large amount of furniture". 3. In Tobin v Chief Commissioner of State Revenue [2009] NSWADT 188 (Tobin), the taxpayer held home contents insurance in respect of another property which she co-owned with her husband during the declared residency period for the Watson's Bay property, for which no such insurance was held. Having regard to the whole factual matrix, that does not compel a conclusion in this case that home contents insurance is a requirement, or a matter of any relevant weight.

Travel between Goulburn and Sydney

1. There are three aspects I should address in respect of the Applicant's travel from Goulburn to Sydney.
2. First, it is not uncommon for people to commute to and from work over long distances. Many people travel from Wollongong, Newcastle, and also from Goulburn. The Applicant has now worked for NSW Health for around 8.5 years. She had established a prior pattern of driving from Ulladulla to Sydney prior to buying her house in Goulburn, notwithstanding that trip was around 3 hours. Goulburn to Sydney was considerably shorter, around 2 hours.
3. Secondly, the Applicant was not prohibited from driving to and from Sydney during the COVID-19 pandemic. She was employed by NSW Health and worked at the hospital in Camperdown. She was classified an "essential worker" and could travel without restriction.
4. Thirdly, the Respondent submitted as a "critical" point that there was insufficient evidence of fuel purchases on the financial records before the Tribunal to support the Applicant's assertion that she spent 4-7 days per week in Goulburn and 0-3 days a week at Dulwich Hill as she had submitted to the Respondent during the investigation. The Respondent had prepared a schedule of based on the financial records provided by the Applicant or obtained under formal notices or summonses (the Chronology). There were some purchases of fuel shown on those records. In order to obtain further clarity, the Applicant was directly asked to explain the situation to the Tribunal at the hearing. Her evidence was that there were two reasons: 1. She had purchased some fuel using her mother's business account. As noted above, she assisted her mother with this business from time to time, and during the relevant period; 2. At that time, she carried a lot of cash, up to several thousand dollars at a time. She had a hobby of selling items on Facebook and Marketplace, and received cash for those items. She elaborated on this by saying that her father was worried about the amount of cash she carried; she had been robbed twice, and once had mislaid a large amount. She eventually stopped carrying so much cash but during the period she bought things using cash, and no longer had any receipts.
5. I accept that she carried cash and used it for purchases. It seems logical to me that cash is more often used in regional areas rather than cities where the pace and convenience of "tap and go" is more the norm. In any event, the use of cash for some purchases (and, more specifically, purchases in Goulburn) is verified by Attachment 3 to her Objection filed on 7 January 2024. This comprised "Home Repair Receipts" showing purchases from Bunnings in Goulburn, which expressly refer to cash tendered; in amounts of $100 (CB 279), $38 (CB 281) and $50 (CB 282). It also suggests that the Chronology is likely to not show all other purchases made in cash.
6. I find it more likely than not that she purchased some fuel with cash, and I accept her evidence under oath that she also used her mother's business account. I note that it is not now possible for car odometer records to verify the travel, because you cannot now know the start and end readings for the 6 month period, and it wasn't clear whether she still owned it.
7. This is also not a case where the Applicant's version of events cannot on any rational view be accepted; contrast the position where assertions regarding train travel can be verified by records obtained from Transport NSW.

Location of expenditure

1. It was submitted by the Respondent that the Chronology also showed that the majority of expenditure was incurred in Sydney, and not in Goulburn, leading to a conclusion that the majority of the Applicant's time was spent living at Dulwich Hill, and not in Goulburn.
2. The Chronology highlighted some expenditure in the Goulburn area, and the majority of expenditure in Sydney, around the areas of Sydney city, Ulladulla, Milton, Camperdown and Dulwich Hill, during the relevant 6 month period.
3. It is not in dispute that the Applicant usually was required to work in Sydney, in Camperdown, for 5 days a week. However, the financial records do not definitively record the actual date that the purchase occurred, as the date of processing may not be the date of expenditure. They certainly do not recall the time of day, and thus the expenditure may have been incurred during the day when the Applicant was at work. They are indicative, but should be treated with some caution as to determining whether Dulwich Hill was her "principal place of residence". The Applicant also pointed out, and I accept, that some of the entries had been misclassified by the Respondent, for example: 1. entries that related to online purchases, or purchases at a location other than Sydney (eg 29 December 2019, 10, 16, 28 January 2020, 18 February 2020 and 5 June 2020); 2. entries that related to purchases close to her work location in Camperdown (which included the Alfred Hotel, Taste Baguette and Grounded Cafe, for which there were numerous items of expenditure).
4. The Applicant accepted that she sometimes purchased groceries across the road from the Dulwich Hill apartment; she said this was due to convenience and that there were restricted hours available to shop in Goulburn by comparison.
5. I have also accept the Applicant's evidence, discussed at paras 91(2) and 92 above, as to why the records may not be complete due to her use of cash, and her inability to produce all receipts today for periods some years ago.
6. On balance, I accept the evidence of the Applicant that she spent, overall, more time in Goulburn rather than Dulwich Hill during the 6 month period. This conclusion is not without doubt. But in any event a counting of days (or identification of purchase locations) is only one factor in the wider objective assessment required and does not conclude the matter; as stated in Chief Commissioner of State Revenue v Mesiti [2003] NSWADTAP 57 at [57], discussing the "principal place of residence" exemption for land tax purposes (my emphasis): Another strong indication is the fact that she spent practically all of her time living there, and little time living at the Willoughby property…. It is a fair inference… that she was not spending as much time at Willoughby as she had during 1997 and 1998. That fact also does not conclusively demonstrate the conclusion, and it would be wrong to decide that a place was the principal place of residence merely, or even mainly, on the basis of a comparison of times spent in each…

Entertainment of Guests / social circle

1. The Respondent submitted that there was no evidence of any connections, in terms of family, activities, or hobbies, friends or other associations the Applicant had in the area near the Goulburn Property.
2. The Applicant worked in Camperdown in Sydney, her work colleagues were there, her partner was there, and they had a circle of friends in Sydney. I accept that she may have entertained at the Dulwich Hill property from time to time. She attended New Year's Eve celebrations in Sydney, and was present there over other weekends, including her partner's birthday in February 2020.
3. The statutory declarations show that her family visited her from time to time at the Goulburn Property. She cooked and entertained them there. They did not state that they visited her during the 6 month period at Dulwich Hill.
4. Although there was not much evidence of regular entertaining at Goulburn, I place little weight on this factor. The Applicant had never previously lived in Goulburn. And the COVID-19 pandemic (as we well recall) resulted in severe social interaction restrictions on gatherings and entertaining for a considerable part of the relevant period.

Connections and utilities

1. The Respondent submitted (CB 709 at [62]) that the "low electricity and water usage should be taken as evidence that the Applicant did not use and occupy the Goulburn Property as her principal place of residence during the residency period". However, the test in s 76(1) is "occupy" and not "use and occupy".
2. There was quite a lot of evidence (and submissions) regarding electricity and water usage. Both parties referred to "average water consumption" and "average electricity use" by reference to Sydney Water usage charts and electricity data. It was clear, however, that the evidence as to the Applicant's actual use was incomplete, as full records were no longer available.
3. Accepting that the onus is on the Applicant, and not the Respondent, I note the following: 1. In response to the Respondent's position that the Origin electricity account was set up for the Goulburn Property on 13 January 2020, the Applicant submitted, and I accept, that the electricity had been already connected, it was registered in her name on 13 January 2020, but issues arose because there was a later date for the meter reading which omitted some usage details from the relevant bill; 2. Only one gas account was available to be provided, for a limited period - and that gas usage was a supplement to the electricity use, at least in part; 3. I accept the submissions of the Applicant that any data for an average "one person household" daily use would be likely to be higher than would apply to the Applicant's circumstances given her weekday job in Sydney, and late return even if present in Goulburn on a day. In other words, any "average" daily use does not take into account the specific circumstances relating to her time at the Goulburn time at Goulburn being limited, due to her travel to and from Sydney for work; 4. Water restrictions were in place in Goulburn at the relevant time, as noted on the water bills in evidence; and 5. Some of the utilities accounts were registered with providers at a later date, and incomplete due to the nature of the billing; with correspondence from and to the Applicant confirming that to be the case.
4. The current case can be contrasted with cases where electricity or other utility bills clearly demonstrate that there was no connection or no use of utilities, such that an assertion that a person was living at a location could not be rationally accepted: see, for example Nakhoul v Chief Commissioner of State Revenue [2009] NSWADT 103 at [7] and the wider facts summarised at [30].
5. I therefore find that the electricity, gas and water use data should not be taken as evidence of significant weight that the Applicant did not occupy the Goulburn Property as her principal place of residence during the residency period.
6. The Applicant connected the internet to her Goulburn Property on 15 January 2020. It was not possible to determine specific usage, as it operated on a "bundled" plan. However, the invoices referred to regular charges of $29.99 throughout the 6 month period.

Other factors

1. I do not consider the following matters to be of any significant weight in my assessment of the statutory test: 1. A single visit by the Applicant to a gym in Sydney during the 6 months period; 2. Meal preparation deliveries to Dulwich Hill - as her partner prepared meals if/when she was in Dulwich Hill, some of which were taken by her to put in a fridge at her work which he had bought for her (and could therefore have been eaten at work or possibly taken to Goulburn); and there was evidence of other food deliveries to both Dulwich Hill and the Goulburn Property (e.g. CB 677); and 3. Laundry being done at Dulwich Hill one day a week, rather than in Goulburn.

The COVID-19 pandemic and changed circumstances

1. There is nothing which suggests to me a questionable purpose in vacating the Goulburn property after 6 months.
2. In any event, the reason has been explained to my satisfaction. This was at the height of the COVID-19 pandemic, there was a strain on the relationship of the Applicant and her partner due to her time spent in Goulburn, and he was working long hours, studying, and volunteering at night as he confirmed at the hearing. The Applicant was also in the "eye of the storm" working for NSW Health, and she was obviously very committed to her job - having been promoted around May or June 2020 (CB 733) to Operations Manager for Cardiovascular Services in Sydney Local Health District (holding dual full-time positions) and later, taking charge of managing one of the mass COVID-19 vaccination centres in Sydney.

Evidence of the witnesses, and consideration of other cases

1. The Respondent referred to the following caution expressed in Peng v Chief Commissioner of State Revenue [2022] NSWCATAD 212 (Peng) at [55]-[57] in respect of "verification evidence": (2) Inadequacy of verification evidence 55. The "verification" evidence produced by Mr Peng, such as electricity bills and car registration documents is of limited value and I give it limited weight. 56. Such documents are often produced by applicants in matters such as this. The obvious and substantial limitation on the weight and reliability of such evidence to establish "permanent residence" is that, as appears to be the case here, the evidence is often based on information provided to the utility providers or motor vehicle and similar registries by the applicant themselves. As Counsel for the Chief Commissioner submitted, for that and other reasons it is possible and indeed common for a bill (and, I would add a government record, for example the record of where a motor vehicle is housed) to record an address at which the person concerned does not permanently reside. 57. For those reasons I find Mr Peng's documentary verification evidence to be unreliable and of limited weight in determining the nature and period of residence at the Grant property.
2. Unlike this case, the unreliability of that evidence was reinforced by significant other, contradictory facts, including that: 1. There was evidence that the property had been tenanted; 2. Mr Peng had been overseas several times during the period and, on each occasion, had stated that he lived at a different address; 3. There were numerous inconsistencies in the evidence presented by various witnesses as to the contended period of residence at the property, with the Tribunal stating at [51] in respect to Mr Peng's own assertions: But the evidence as to Mr Peng's earlier assertions as to his period of residence throws doubt on his assurances on this matter at the hearing. It is clear, as asserted by the Chief Commissioner, that Mr Peng himself at various times has described his period of residence as 1 June 2016 to 31 January 2017, May to November 2016, and February 2016 to August 2017. None of those periods satisfies the requirement. 1. The Tribunal, which confirmed the assessment, as well as a substantial penalty (which was found to be appropriate taking into account his "inconsistent and unsatisfactory nature of his explanations" (at [34]), such that his account could not be an honest mistake to justify a lower penalty).
3. These findings were supported by the Appeal Panel in Peng v Chief Commissioner of State Revenue [2022] NSWCATAP 378, which also said (at [65]): To summarise, both the Commissioner and the Tribunal had before them evidence which suggested that Mr Peng had been dishonest in relation to the question of whether he fulfilled the residence requirement, and both the Commissioner and the Tribunal formed the view, on the basis of that evidence, that Mr Peng had been dishonest.
4. Here, I found the witnesses to be credible and open in providing their evidence. Nothing relevantly "threw doubt" on their truthfulness nor was there illogicality or irrationality in their responses. I also note the following: 1. The Applicant was concerned about any suggestion that she had been untruthful, obstructive or manipulative. She stated that she was very worried about her honesty being attacked. For example, in disputing the penalty uplift imposed for hindering the investigation (later withdrawn by the Respondent), the Applicant referred to her request for an extension, which was refused without reasons being given; she also produced a printout of every single email bounceback message from the investigator's email address showing her attempts before being given an alternative email address which succeeded on the first try. 2. Her partner and father took their obligations in providing their evidence very seriously, and declined to provide details which were "guesses" rather than knowing for sure, which appeared to me that they understood and took their oath very seriously.
5. I have considered other cases raised in the parties' submissions; but each case turned on its own specific facts, as does this one. To the extent they may be instructive or at least illustrative, they have been referenced above. As noted by the Tribunal in Peng at [72]: I find that the decision in [Bulgak v Chief Commissioner of State Revenue [2015] NSWCATAD 237] turned on the particular facts of the case and nothing in the Tribunal's decision in that matter (which was substantially in favour of the taxpayer), including the Tribunal's consideration of the relevant principles applying to a determination of a permanent place of residence changes my conclusions as to the facts or my decision in the present matter.

Conclusion

1. I find that the residence requirement in s 76(1) of the Duties Act was satisfied. The Goulburn Property was occupied by the Applicant as her principal place of residence for a continuous period of 6 months which commenced on 28 December 2019 and ended on 28 June 2020. In short, and relating to the specific facts of this case (but not derogating from the discussion above): 1. The Goulburn Property was the only house she owned, or had ever owned. She had full possession and occupation over it; 2. It was the Applicant's intention to live in the Goulburn Property as her principal place of residence, and for no other purpose; 3. She took "significant steps" which were confirmatory of that intention; it was established and occupied with the required degree of permanence, continuity and regularity and had a "settled character" to it throughout the relevant period. It was the home to which she always returned, notwithstanding her regular visits to Sydney, as required by her particular employment circumstances and mandated further by the COVID-19 directions to essential health workers; 4. At all times during that period, it was untenanted, fully habitable, fully furnished, and utilities (including internet) were connected and used; 5. It was the property that her family referred to as "her home" and came to visit her at; 6. It was insured on an "owner occupier" basis, and her car insurance stated it was garaged there; 7. Her key identification (drivers licence) was registered to that address, as were other documents; 8. Her decision to vacate the Goulburn Property on 28 June 2020 was made in the midst of COVID-19, and having regard to her new/expanded role with NSW Health (including to set up a mass-vaccination centre in Sydney); 9. Although she clearly had other "places of residence" available to her during the 6 month period: 1. Dulwich Hill was the principal place of residence of her partner, but not of the Applicant, even though she was on the lease and contributed to the rent. It was, rather, her "subsidiary" place of residence (per Single v Chief Commissioner of State Revenue [2006] NWADT 334 at [16]); and 2. Similarly, Ulladulla was the principal place of residence of her parents, but not the Applicant.
2. As no other matters were relevantly in dispute, the Applicant was entitled to the exemption from duty. The correct and preferable decision is to revoke the Assessment. As a result, no duty, interest or penalties are payable, and all amounts paid by the Applicant under her payment arrangement should be refunded.
3. Given my decision above, I do not need to consider the discretions under s 76(2) of the Duties Act, or the provisions relating to interest and penalties (and discretions available) under the TA Act. I also do not need to address the Applicant's further submissions alleging a lack of procedural fairness by the Respondent.
4. I thank the Applicant and the Respondent for their comprehensive submissions and assistance during the hearing.

Orders

1. I make the following order: 1. The assessment to duty, penalty and interest issued by the Respondent is revoked in full.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 November 2024