Bradshaw v Chief Commissioner of State Revenue

Material before the Tribunal

1. The Respondent relied on: 1. Bundle of tabbed documents comprising 120 pages and a 6 page index filed 16 December 2019 (excluding page 75 being a statutory declaration of Mr Kovacic) (s 58 documents) (Exhibit R1); 2. Transfer document AF781345B (Exhibit R2); 3. Historical search of Folio 8, Strata Plan 76921, dated 28 July 2020, (Exhibit R3); 4. Outline of submissions dated 18 June 2021 (RS). RS is based on an earlier outline of submissions by the Respondent dated and filed 11 August 2019 (RS1) with some amendments. I observe that paragraphs 1 - 55 of RS are unchanged from the same numbered paragraphs in RS1 except for paragraphs 41 and 55. New paragraphs in RS are identified by numbering followed by a letter (e.g. paragraph 6A); and 5. Oral submissions made during the hearing by Mr S.T. Richardson of counsel, representing the Respondent.
2. References to paragraph numbers of submissions by the Chief Commissioner are to paragraphs of RS unless stated to the contrary.
3. The Applicant relied on: 1. Statutory declaration made by the Applicant on 22 February 2018. 2. Undated written submission by Valentino Kovacic (Mr Kovacic) on behalf of the Applicant filed 21 July 2019 (AS). 3. The Application. 4. Statement by the Applicant dated and filed 29 May 2020. 5. Unsigned undated statement by Mitchell Biner filed 2 June 2020. 6. Statutory declaration declared 15 February 2018 by Mr Biner. 7. Unsigned undated statement by Monica Kovacic with name changed to Mrs Tracey Kovacic, without a filing date. The document bears at the start of the substantive section of the document the typed name of the statement's apparent maker "Tracey Kovacic" and at the foot of the document the typed words "Signed: Monica Kovacic". 8. References to paragraph numbers of submissions by the Applicant are to paragraphs of AS unless stated to the contrary. 9. Oral submissions made during the hearing by Mr Kovacic, agent representing the Applicant.
4. In preparing written submissions to the Tribunal after the hearing, both parties had the opportunity to rely on: 1. Joint bundle of tabbed authorities filed by the Respondent on 14 August 2020. 2. The transcripts of the hearing which took place on 11 September 2020 (T1) and 28 October 2020 (T2).
5. I observe that despite having ample opportunity after the hearing to prepare written submissions and submissions in reply to RS, no further submissions were filed for Mr Bradshaw.

The role of the Tribunal

1. The Tribunal was established by the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act). The objects of the CAT Act include enabling the Tribunal to review and determine appeals against decisions made by certain persons and bodies; enabling the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible; and ensuring that the Tribunal's processes are open and transparent (ss 3(b)(ii) and (iii), 3(d) and 3(f)).

Powers of Tribunal on review

1. Section 28 of the CAT Act provides "The Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation."
2. Section 96 of the Taxation Administration Act 1996 (NSW) (TA Act) provides that a taxpayer may apply to the Tribunal for an administrative review of a decision of the Chief Commissioner that has been the subject of an objection under certain circumstances, including if the taxpayer is dissatisfied with the Chief Commissioner's determination of an objection.
3. The Tribunal may confirm or revoke a reviewable decision of an administrator, including an assessment, or make a decision in place of the reviewable decision and make orders as to costs or otherwise as it thinks fit: s 101(1) of the TA Act.
4. Section 38 (2) of the CAT Act provides that the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. The Tribunal is to act according to equity and good conscience and the substantial merits of the case without regard to technicalities and shall take such measures as are reasonably practicable to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings: ss 38 (4) and (5).
5. Pursuant to s 63 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) the Tribunal is to decide what the correct and preferable decision is, having regard to the material then before it, including any relevant factual material, and any applicable written or unwritten law.

Issues before the Tribunal

1. The Application sought a review of the Disallowance Decision.
2. In Chief Commissioner of State Revenue v Paspaley [2008] NSWCA 184 the Court of Appeal said at [28]: … the right of review under s 97 is given by reference to the operative decision of the Chief Commissioner and not to a ruling made on an objection. Although the existence of an objection is a necessary precondition to the power of review by the Court, and it is the taxpayer's dissatisfaction with the determination of the objection which provides standing to seek review, it is the initial decision which is the subject matter of the review.
3. Section 96 of the TA Act provides the jurisdictional power of administrative review by the Tribunal, which is commensurate with the Supreme Court's jurisdictional power in s 97.
4. There is no dispute that: 1. Mr Bradshaw was dissatisfied with the disallowance of his objection; and 2. notwithstanding the wording of the Application, it is the Assessments, not the Disallowance Decision, which are the subject of review by the Tribunal in these proceedings.

Onus

1. The Applicant has the onus of proving his case in a review by the Tribunal (s28(3) of the First Home Owner Grant Act 2000 (NSW) (Grant Act) and s100(3) of the TA Act).
2. The requisite standard of proof is the "balance of probabilities" Cornish Investments Pty Limited v Chief Commissioner of State Revenue (RD) [2013] NSWADTAP 25 at [31] and B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187, (2008) 74 NSWLR 481 at [104].
3. In AS, the Applicant's representative made numerous submissions as to facts. To the extent that certain submissions were not supported by evidence before the Tribunal, those submissions do not carry any weight in the Tribunal's reasoning.

Miscellaneous submissions by the Applicant

1. Having regard to my below findings as to the evidence by Mr Bradshaw and his witnesses, I distinguish Mohamed v Chief Commissioner of State Revenue [2012] NSWADT 169, relied on at by the Applicant at [14], from Mr Bradshaw's case to the extent that Judicial Member Frost said at [29] in Mohamed the Chief Commissioner commenced his review of Ms Mohamed's entitlements a full four and a half years after the date she claimed to have moved into the property and by then lived overseas so that it was not surprising that there would be some gaps in her memory; at [31] Ms Mohamed and her sister both gave sworn evidence which the Tribunal believed; and at [32] Frost JM said " … despite believing them, [Ms Mohamed and her sister] I would reject Ms Mohamed's claim if the objective evidence cast sufficient doubt on their version of events as to make it implausible. It does not."
2. Mr Bradshaw relied at [13] on Bulgak v Chief Commissioner of State Revenue [2015] NSWCATAD 237 (Bulgak) and said "…notwithstanding the applicants failure to change his address on the electoral roll form, it cannot alter the fact the applicant lived in the premises …".
3. I note that at [42] in Bulgak, P Wass SC (Senior Member) said Mr Bulgak: " … stated, and I accept, that he did not think about [the electoral roll address which was at his parents' home] and that the address on the electoral roll meant little to him and he did not see the need to immediately notify the AEO, particularly as his parent's home and [the subject] property were within the same electoral boundary. "
4. P Wass SC also said at [136]: Overall, whilst the applicant's failure to use the property for receiving mail and by continuing to nominate his parent's address is evidence detracting from his use of the property as his principal place of residence, I also regard his informing the RMS and his employers as to where he was living as evidence as supporting the applicant's contention that he did use the property as his principal place of residence.
5. There is no dispute that Mr Bradshaw did not change his address on the electoral roll from his parents' address on the Central Coast to the Property which he claimed was his Principal Place of Residence. However, contrary to Bulgak, there is also no evidence that the Property and Mr Bradshaw's parents' address were in the same electorate. Further, there is no evidence before the Tribunal to the effect that Mr Bradshaw informed his (unidentified) employer(s) as to his residential address. I find that the above extracts distinguish the factual situation in Bulgak from these proceedings.

Substantive legislation

1. At [33] to [44C] the Respondent outlined certain provisions of the First Home Owner Grant Act 2000 (NSW) (Grant Act) and the Duties Act 1997 (NSW) (Duties Act) which the Respondent claimed were relevant. Mr Bradshaw does not dispute the relevance of those provisions to these proceedings.

First home owner's grant

1. The purpose of the Grant Act is set out in its long title and relevantly is "to encourage and assist home ownership… by establishing a scheme for the payment of grants to first home owners".
2. No grant is payable under the Grant Act unless an applicant complies with certain eligibility criteria and completes the purchase of a home with an eligible transaction (Grant Act, s7).
3. One of the mandatory eligibility criteria, namely the residence requirement, is set out in s12 of the Grant Act as follows: 12 Criterion 5 - Residence requirement (1) An applicant for a first home owner grant must: (a) commence occupation of the home to which the application relates as the Applicant's principal place of residence within 12 months after completion of the eligible transaction or the period approved by the Chief Commissioner under this section, and (b) occupy the home as a principal place of residence for a continuous period of at least 6 months or the period approved by the Chief Commissioner under this section. … (3) The Chief Commissioner may, if satisfied there are good reasons to do so, do either or both of the following: (a) approve the commencement of occupation by the applicant of the home to which the application relates as a principal place of residence more than 12 months after completion of the eligible transaction, (b) approve the occupation of the home as a principal place of residence for a period of less than 6 months. (4) The Chief Commissioner may, if satisfied there are good reasons to do so, exempt an applicant from the residence requirement. (5) An approval or exemption under this section may be given by the Chief Commissioner at any time …
4. There is no dispute that the transaction pursuant to which Mr Bradshaw purchased the Property was initially dealt with by the Chief Commissioner as an eligible transaction. In accordance with s 13(5)(a) of the Grant Act, completion of a relevant eligible transaction occurs when the purchaser becomes entitled to possession of the home under the contract, and if the purchaser acquires an interest in land under the contract that is registrable under a law of the State, the purchaser's interest is registered under that law.
5. There is also no dispute that a copy of the registered Transfer as instrument AC780727, marked exempt from duty and dated 24 November 2006, was recorded on 30 November 2006 by the Office of the Registrar-General. The supporting documents are the copy Transfer at page 38 of the s 58 documents and a New South Wales Land Registry Services - Historical Search, Exhibit R3.
6. Having regard to the two immediately preceding paragraphs, I find that, for the purpose of the Grant Act, completion of the transaction by which Mr Bradshaw acquired the Property, took effect on 30 November 2006.
7. At [37] the Chief Commissioner submitted: Under s 45 of [the Grant Act], the respondent had power to require an applicant (or former applicant) for a [Grant] to repay an amount paid, if the amount was paid in error or the respondent reversed the decision under which the amount was paid for any other reason and to impose a penalty.
8. Mr Bradshaw's submissions made no reference to either "s 45" or "penalty".
9. I observe that s 45 of the Grant Act provides: 45 Power to require repayment and impose penalty (1) The Chief Commissioner may, by written notice, require an applicant (or former applicant) for a first home owner grant to repay an amount paid on the application if: (a) the amount was paid in error, or (b) the Chief Commissioner reverses the decision under which the amount was paid for any other reason. (2) If, as a result of an applicant's dishonesty, an amount is paid by way of a first home owner grant, the Chief Commissioner may, by the notice in which repayment is required or a separate notice, impose a penalty not exceeding the amount the applicant is required to repay. (3) If an applicant (or former applicant) for a first home owner grant fails to make a repayment required under this section or the conditions of the grant, the Chief Commissioner may, by written notice, impose a penalty not exceeding the amount the applicant is required to repay. (4) If an amount is paid in error on an application for a first home owner grant to a third party, the Chief Commissioner may, by written notice, require the third party to repay the amount to the Chief Commissioner.
10. There is no dispute that s 45(1) of the Grant Act provides for repayment of a grant, if the amount was paid in error or the Chief Commissioner reverses the decision under which the amount was paid for any other reason.
11. The only references in s 45 to "penalty" are found in s 45(2) and s 45(3).
12. Relevantly, sub-section 45(2) empowers the Chief Commissioner to impose a penalty by either the notice in which repayment of an amount paid by way of a grant is required or a separate notice, if the amount of the grant was paid as a result of an applicant's dishonesty [Tribunal's emphasis].
13. Sub-section 45(3) provides, amongst other matters, that if a relevant or former applicant fails to make a repayment required under s 45, the Chief Commissioner may, by written notice, impose a penalty.
14. I observe that neither the letter headed Repayment of First Home Grant dated 24 September 2008 (the Grant Letter) nor the First Home Owner Grant - Notice of Assessment of that date (NOA) made any allegation of dishonesty by Mr Bradshaw in relation to payment of the grant. Nor, did the letter or NOA specify any other basis for imposition of the penalty pursuant to s 45(2). There are no submissions as to what information was relied on, at 24 September 2008, to enable the Chief Commissioner to come to a view that what the Applicant did was dishonest. No evidence was identified to the effect that the Chief Commissioner had considered whether the Applicant had acted dishonestly and no submissions were made to that effect by the Chief Commissioner. Accordingly, I find that I am not aware as to the basis on which such a finding was impliedly made under s 45(2). Rather, I am satisfied on the balance of probability that there is insufficient evidence before the Tribunal that all relevant requirements of s 45(2) in respect of the imposition of a penalty were addressed by the Chief Commissioner at the time the letter and NOA were issued.
15. Further, I observe that the date for repayment of the $7,000 grant is stated in the NOA to be 15 October 2008. That date having not been reached as at 24 September 2008, I find that Mr Bradshaw could not have failed to comply with his repayment obligations under the letter and NOA prior to 15 October 2008.
16. I observe that s 45(3) permits the Chief Commissioner to pursue Mr Bradshaw for a penalty if a repayment required under s 45 or the conditions of the grant is not made. I found above that Mr Bradshaw could not have failed to comply with his repayment obligations under s 45(2) prior to 15 October 2008.
17. I observe that s 21 of the Grant Act (Imposition of conditions by Chief Commissioner) provides that the Chief Commissioner may impose conditions that the Chief Commissioner considers appropriate, including that the grant applicant repay the grant within a period stated by a condition. In so far as the Chief Commissioner issued the NOA which extended the date for repayment of the grant to 15 October 2008, I find that the grant conditions were thereby varied and Mr Bradshaw had not failed to comply with the grant conditions, as amended, on 24 September 2008 when the NOA was issued.
18. I observe that my above findings do not apply in relation to a fresh NOA concerning an imposed penalty to the extent that the grant has not yet been repaid.

The duty concession

1. The purpose of the scheme establishing the stamp duty concessions / exemptions obtained by the Applicant which concessions / exemptions were reversed by the Chief Commissioner, (the Duty Scheme), was set out in s 69 of the Duties Act at the relevant date. The scheme was intended to help people acquire their first home by providing that the acquisition and any mortgage given to assist the financing of the acquisition were subject to a concession or exemption from duty.
2. There is no dispute that the Duty Scheme relevantly included a residence requirement in section 76 of the Duties Act which, in summary, provided that the home must be occupied by the acquiring applicant / owner as their principal place of residence for a continuous period of at least 6 months commencing within 12 months (or such longer period as the Chief Commissioner, and in these proceedings the Tribunal, may approve) after completion of the agreement or transfer.
3. The Duty Scheme provided that the Chief Commissioner (in this case the Tribunal) may, if satisfied there are good reasons to do so, either modify the residence requirement by approving a shorter period of occupation by the applicant, or exempt the applicant from compliance with the residence requirement.
4. Section 76(5) also provided that a relevant agreement or transfer was completed when a purchaser / transferee became entitled to possession of the home and, if the interest in the home so acquired was registrable under a law of the State, the interest was so registered.
5. I find that in all relevant substantive respects the residence requirement in s 76 of the Duties Act was identical to the residence requirement in s 12 of the Grant Act.
6. Each residence requirement outlined above is referred to in the remainder of these reasons as "the Residence Requirement".
7. Section 76A of the Duties Act enables the Chief Commissioner to approve an application in advance of satisfaction of the Residence Requirement. Each such approval is conditional, if the Residence Requirement is not complied with, on the applicant giving written notice and paying relevant duty (as defined in s 76A(3)) to the Chief Commissioner within 14 days after the end of the period allowed for compliance. I note that s 76A(4) provides 'A person who fails to comply with the condition prescribed by this section is guilty of an offence'.
8. There is no dispute that, in order to succeed in the Application, Mr Bradshaw must prove on the balance of probability that he occupied the Property as his Principal Place of Residence for a continuous 6 month period commencing no later than 30 November 2007 or the Chief Commissioner / Tribunal must exercise a statutory discretion in his favour.

Mr Bradshaw's evidence

1. Mr Bradshaw said: 1. In his statutory declaration: during the term of his ownership he lived in the Property and paid almost all utility bills due to his usage; he did not rent or lease the Property to any other person; his occupation of the Property was as his "primary residence"; the Property was never rented out for investment purposes; and he had to sell the Property in 2010, as he could no longer keep up with mortgage repayments and strata levies. 2. In his statement: prior to buying the Property, he lived there with another occupant under an existing tenancy; once he became the owner he took over the rent the previous owner was receiving and continued to live at the Property full time together with the previous tenant; the Property had 2 bedrooms and 2 bathrooms; the existing tenancy permitted the tenant to only allow 1 person to reside in the Property; the existing tenancy ended 9 January 2007 and Mr Bradshaw rented the Property to a 2nd tenant for occupation by 2 persons under a second tenancy agreement from 24 January 2007; Mr Bradshaw said he was working most of the time; he needed the rent because of ongoing mortgage and stamp duty costs; and he lived at the Property as his Principal Place of Residence until 31 May 2007 when he returned to his mother's home on the Central Coast having fulfilled his "obligations under Section 76 of the Duties Act". Mr Bradshaw said his move to the Central Coast related to having found a new job there and travel was easier. 3. After the 2nd tenant vacated the Property, Mr Bradshaw said he returned to Sydney for work and lived at the Property until he sold it. Expenses were shared with Monica Kovacic (Miss Kovacic) without a formal lease. I observe that Mr Bradshaw provided no evidence as to the terms of Miss Kovacic's occupation of the Property. Mr Biner's relevant unchallenged evidence was that throughout Mr Bradshaw's ownership of the Property he (Mr Biner) travelled from the Central Coast to stay with Mr Bradshaw at least twice a week. 4. I also observe that, contrary to the evidence referred to in the immediately preceding paragraph, Mr Bradshaw's oral evidence was that when he returned to the Property at the end of the second tenancy he lived there by himself and had no renters. While there may be some ambiguity as to what a "renter" was, Mr Bradshaw's statement that he lived at the Property by himself for some two years appears to contradict both his above evidence and that of Mr Biner and Mrs Kovacic.
2. In his oral evidence to the Tribunal Mr Bradshaw said the contents of both his statutory declaration and statement were 100% true to the best of his understanding. He also said his statutory declaration of 2018 related to 2010 and his statement of 2020 related to when he purchased the Property in 2006.
3. However, contrary to the immediately preceding paragraph, I note that: 1. Mr Bradshaw's statutory declaration of 2018 expressly referred to "2010" as well as "2018"; and 2. his statement of 2020 expressly referred to events in or on "09/01/07"; "24/01/2007"; "31/05/07"; "August 2008"; "19/11/2010"; and "08/01/18"; "22/1/18"; and "16/12/2019".
4. Mr Bradshaw's oral evidence included: 1. He agreed that in his statement he said, in relation to the rent he received, "I needed the income to pay for the mortgage and strata fees" and "At the time I wasn't earning a hell of a lot of money." However, he denied that before he completed the purchase of the Property he was aware that he would need rental income to afford the Property. Mr Bradshaw confirmed the words in his statement and attempted to explain his clear evidence by saying "that is after the fact". Mr Bradshaw also said, at T1 page 76 from line 8, after he settled the purchase he "… lost a few hours [of work] … " and "… I was struggling a little bit …". 2. On the same transcript page a few questions later Mr Bradshaw said from line 33 "… It wasn't until about January that I started losing some money and, you know, lost hours and things were going down the hill…" . 3. In response to Mr Richardson saying there appears to be an inconsistency between Mr Bradshaw's statement [at the second dot point] that he "… was working most of the time" when the second tenant started paying rent from 24 January 2007, Mr Bradshaw said he was working less hours and "repeatedly said he "… never worked 24 hours a day …". 4. Mr Bradshaw said (at T1 page 80) "… why would I buy a property if I couldn't afford it. At the time when I purchased the property of course I could afford it otherwise why would you do it. You are just going to bankrupt yourself. And then after the situation changed later on is when I moved back into the property and I lived there by myself, it was my property. After that I never had any renters in there until it was sold. I had an extreme downturn in work. I lost a lot of income. You know, everything that I had went into the property to keep it going so I didn't lose it. You know, I didn't want to lose my name in bad mortgage and stuff like that so I had to do what I had to do and I got someone in there to assist with me. …"
5. I do not find on the balance of probability that Mr Bradshaw's oral evidence to the Tribunal should be interpreted so as to over-ride the words or dates expressly used in his statutory declaration and statement as to what events occurred and relevant dates, especially when Mr Bradshaw had already sworn that to the best of his understanding the contents of his statutory declaration and statement were true. In short, I did not find Mr Bradshaw to be an impressive witness.

Mr Biner's evidence

1. Mr Biner said: 1. In his statutory declaration: in an earlier statutory declaration in 2010 he knew Mr Bradshaw purchased the Property and moved into it once he owned it; at least twice a week he travelled from the Central Coast to stay with Mr Bradshaw; all the time that Mr Bradshaw owned the Property he lived there; it became difficult for Mr Bradshaw to stay at the Property due to high mortgage commitments and he sold the Property. 2. In his unsigned statement: Mr Bradshaw lived at the Property from when he took over ownership; Mr Bradshaw lived permanently at the Property before he had ownership and shared the Property with another occupant; after buying the property Mr Bradshaw continued to live at the property as a full time occupant until around May 2007 and shared the Property; After May 2007, Mr Bradshaw moved back to the Central Coast due to work requirements; In early 2008, Mr Bradshaw managed to get a new job back in the Sydney region and he moved back into the Property until he sold it. For two periods, [probably] prior to May 2007 and after Mr Bradshaw moved back to the Property and until it was sold, Miss Kovacic stayed there with Mr Bradshaw and shared with other occupants. 3. In his oral evidence to the Tribunal Mr Biner agreed there was an inconsistency in that in his statutory declaration he said Mr Bradshaw lived in the Property throughout his whole period of ownership while in his statement Mr Biner said Mr Bradshaw moved from the Property in May 2007 to the Central Coast and returned to the Property early in 2008. Mr Biner then said he can understand the inconsistency, "it is out of context a little bit", Mr Bradshaw went to the Central Coast for a "very limited amount of time" and "it is a long time ago". 4. Mr Biner said it should have read that Mr Bradshaw owned the Property the whole time and while he was living there he moved out; (sic) the same tenant stayed, Mr Biner thought he move back and Mr Biner remembered moving Mr Bradshaw's furniture in and out on separate occasions; he "could have written it wrong"; "… I did go and see him many times, every week from the Central Coast … the statutory declaration and the statement are slightly different mate but they were a long time apart … I probably used the wrong wording. I take full responsibility". 5. Mr Biner did not accept that there were potentially other issues with his evidence. He said he would hate to see something untoward come of Brendan because he (Mr Biner) got it wrong - if he wrote it wrong it is on him, not on Mr Bradshaw.
2. I find that some of Mr Biner's evidence contradicted his other evidence and he expressed concern that his evidence may detract from Mr Bradshaw's case.

Mrs Kovacic's evidence

1. Mrs Kovacic swore that the contents of her statement were true and correct.
2. In the first paragraph of her statement Mrs Kovacic said Mr Bradshaw lived at the Property "since he became the owner" while in the second paragraph she said Mr Bradshaw moved into the Property before settlement of his purchase. In her evidence to the Tribunal, Mrs Kovacic expressed confusion as to whether Mr Bradshaw had moved into the Property before or after settlement and then said he became the owner in November and guessed that was when he moved into the Property: T1 page 19 at 34-46.
3. In her oral evidence to the Tribunal Mrs Kovacic said she was unsure as to whether the Property was tenanted prior to settlement in November 2006. In the second paragraph of her statement Mrs Kovacic said "… Brendan then agreed at the suggestion of my husband to rent out one of the bedrooms …". Mrs Kovacic was uncertain as to when this occurred.
4. Mrs Kovacic confirmed that her daughter (Monica) moved into the Property with Mr Bradshaw. Mrs Kovacic thought this probably occurred early in 2007 but was uncertain as to the exact date. Mrs Kovacic was not aware as to whether she and her then husband made payments on behalf of their daughter to live at the Property.
5. Mrs Kovacic was not certain as to whether it was likely that a tenant lived at the Property before Mr Bradshaw became its owner.
6. Mrs Kovacic said Mr Kovacic was more involved with arrangements with Mr Bradshaw concerning the Property than she was.
7. In re-examination Mrs Kovacic said she had no conversations with Mr Kovacic concerning their daughter moving in with Mr Bradshaw nor whether either of them would help pay for her to live at the Property.
8. Mrs Kovacic also said her daughter probably moved back to her (Mrs Kovacic's) home at the Central Coast in around May 2007 and thought that Mr Bradshaw returned to the Central Coast around the same time. She knew the latter because her daughter informed her she had to come back because Mr Bradshaw had rented out the Property full-time to someone.
9. In re-examination, Mrs Kovacic said she thought her daughter had told her she came back because Mr Bradshaw had had to get work and had to move out.
10. I find that much of Mrs Kovacic's evidence seemed to be based on what she recalled hearing in discussions with either or both of her husband and daughter rather than based on events she had seen herself.

The Applicant's submissions concerning the Residence Requirement

1. At AS [2] the Applicant sought an extension of the original grounds of the Application to apply for an exemption of the Residence Requirement in accordance with s 12 of the Grant Act and s 76 of the Duties Act.
2. I observe that the Chief Commissioner said at RS [6]: The Tribunal is required to determine whether the applicant complied with statutory residence requirements necessary enjoy the FHOG grant and the exemptions from duty. Or, alternatively, to consider an exercise of discretion to extend the date upon which occupation could first commence so that the statutory residence requirements may, nonetheless, be satisfied.
3. As the Applicant correctly submitted, there are discretionary powers which may be exercised by the Tribunal in certain circumstances. I deal with those below.
4. The Applicant's submissions in AS in relation to the Residence Requirement included at [3] "The applicant further contends that he is not in breach of the residency requirement of both Acts in question." The Applicant relied on Cullen v Chief Commissioner of State Revenue [2007] NSWADT 121 and submitted that the former Administrative Decisions Tribunal (ADT) said the Tribunal had: … discretions which are intended to allow the grant to be referred in circumstances the applicant genuinely intended to occupy the home as his or her principal place of residence but failed to do so due to a change in circumstances after the purchase of the home …"
5. I note that the Applicant's above extract from Cullen is not accurate. The Tribunal had referred at [39] in its decision to the Second Reading Speech by the Hon. Michael Costa on the SRLFA Bill 2005 (which became the SRLFA Act 2005) in the NSW Legislative Council on 29 November 2005. The words used are generally taken from the Second Reading speech but are not the exact words used by the Minister.

Discretionary power of the Tribunal

1. At [3] Mr Bradshaw submitted that if the Tribunal did not accept that he was not in breach of the Residence Requirement, he wanted the Tribunal to exercise its discretionary power and functions in his favour to consider exceptions to the Grant Act and the Duties Act as he "genuinely intended to occupy [the Property] as his principal place of residence but failed to do so due to a change in circumstances after the purchase of" [the Property]".
2. The Residencet Requirement in s 12 of the Grant Act is set out at [31] above. The Duties Act similarly provides that the Chief Commissioner (the Tribunal in this case) may, if satisfied there are good reasons to do so, either modify the residence requirement by approving a shorter period of occupation by the applicant, or exempt the applicant from compliance with the residence requirement.
3. The Chief Commissioner relied on the decision of Judicial Member Hirschhorn in Nguyen v Chief Commissioner of State Revenue [2009] NSWADT 289 (Nguyen). At RS [44B] and [44C] the Chief Commissioner extracted from Nguyen: 54 … the power of the Respondent in s. 12(3)(a) [the Grant Act] and section 76 Duties Act is a discretion and there are no express conditions or considerations in the legislation itself governing the exercise of the discretion. … the "circumstances" that would constitute "good reasons" for its exercise and, therefore, the scope of the discretionary power, must be determined in the context of [the Grant Act] or the Duties Act respectively."
4. The Chief Commissioner submitted at [44C]: 44 "… whether the discretion is being exercised either under [the Grant Act] or the Duties Act, each requires the decision-maker to identify a "good reason" to exercise the discretionary power and that must be determined in the context of the respective legislation. Either way, the discretion is one which can only be exercised with good reason … [and] the contextual considerations (as they pertain to [the Grant Act] and the corresponding relief from duty) are the same.
5. At [146] the Chief Commissioner referred to Gomez-Martinez v Chief Commissioner of State Revenue [2007] NSWADT 251) in which Judicial Member Block in reviewing the refusal by the Chief Commissioner to exercise the discretions under consideration, made the following comments: … "It is the very clear view of this Tribunal that this is quintessentially a case in which to grant discretionary relief would be to transgress the boundary to which French J referred in Swift's case. The evidence before the Tribunal points to the fact that at the time of purchase the Applicant could not afford the property; the fact that he was obliged to borrow nearly the whole of the price and on terms as to interest which were beyond his means indicates that he did not then intend to occupy the property. His entry into the management agreement pursuant to which it was leased out and the fact that it was leased even before completion, by his vendors, reinforces this view. The fact that he was obliged to lease it yet again after the [tenants] vacated the property is also relevant.
6. Having regard to the overall evidence before the Tribunal, including the lack of probative evidence as to Mr Bradshaw's financial position at the time he entered into the Contract pursuant to which he purchased the Property, the sparse evidence as to any substantial change in his circumstances after he entered into the Contract (to which I refer below), and my understanding of the relevant provisions of the Grant Act and the Duties Act, I am not satisfied that Mr Bradshaw has provided any sufficiently good reason for the Tribunal to exercise its discretion in his favour.
7. Mr Bradshaw submitted: 1. at [4] that the Tribunal hear [and consider] the matter on the basis that he may be entitled to an exemption to the Residence Requirement and the time limits in the Grant Act and the Duties Act. The Tribunal should use its discretion to extend the Residence Requirement by a further 5 months and 13 days beyond the expiration of the statutory 12 months after completion of purchase of the Property. 2. At [6], he always intended to use the Property as his Principal Place of Residence and had moved to Sydney to move away from pressures from his parents. 3. At [8], referring to his statutory declaration, Mr Bradshaw said he did not lease the Property because he had not considered that sharing the Property with a paying tenant (who had signed a tenancy agreement) [Tribunal's comment] was considered to be leasing the Property. 4. At [10], Mr Bradshaw shared the Property with other paying occupants from time to time and he submitted there is nothing in relevant legislation stating he cannot share premises he owns with people he charges costs. He relied on a website of Revenue SA which has "the same type of Acts as in NSW" and which states: Providing you occupy the home as your principal place of residence for a continuous period of at least 6 months commencing within 12 months after completion of the eligible transaction, you are still eligible for a FHOG. It is also acceptable for you to rent out a room (or other portion of the home) while you complete your six months' occupation'! 1. At [12], Mr Bradshaw referred to (and mis-stated) paragraph [9] in Ferrington. So far as I understand the point Mr Bradshaw was seeking to make, it was that s 24(1) of the Grant Act provides: 24 Notification of decision (1) When the Chief Commissioner decides to … vary or reverse an earlier decision on an application, the Chief Commissioner must give the applicant notice of the decision and must state in the notice the reasons for the decision. Further, at AS [12], Mr Bradshaw submits that the Chief Commissioner took too long to investigate and deal with his matter after his purchase and contends that: "… the respondent sent a notice dated 22/11/10 some 4 years after the acquisition of the property by the applicant. Furthermore the notice did not stipulate in writing the reasons for the assessment or its decision.
8. I deal with certain of these allegations under the heading "Communications between Mr Bradshaw and the Chief Commissioner" below.
9. The Chief Commissioner submitted: 72. The applicant's position is that in the legislation there is nothing "highlighting the fact that [the applicant] couldn't rent the premises out whilst still living there" The applicant reIied on (seemingly equivalent) South Australian law. The respondent disagrees because it is the laws of New South Wales which are relevant. Further, and most importantly, the position of the applicant ignores the requirement manifested by the legislation and stated in the case law that the applicant must have retained exclusive possession. 73. The respondent's position in Khalil, summarised at [26], was as follows: having granted exclusive possession of the property to Ms Ali, via the lease, for the duration of lease, Mr Khalil could not and did not occupy the property in accordance with the requirements of s 12(1) of the Grant Act and s 76(1) of the Duties Act.

Change in circumstances

1. At [14] the Applicant claimed he: encountered extreme financial difficulties once he took ownership of [the Property] and [suffered] a substantial reduction in [working] hours during his occupation of [the Property]. His circumstances changed dramatically in which he required to have a shared occupant paying to assist payment of bill and mortgage payments during his occupation
2. Mr Bradshaw's evidence as to his financial circumstances includes: 1. At the sixth paragraph in his statutory declaration he said he had to sell the Property as he could no longer keep up with mortgage payments and strata levies. 2. In his statement he said when he became owner in November 2006 the Property was rented out and he took over receipt of the rent as he needed the income to pay his mortgage and strata fees; the first tenant's lease ended on 9 January 2007 and he rented to a second tenant on 24 January 2007 [I note firstly that there were two tenants who were parties to the second lease and secondly the evidence is that Miss Kovacic resided at the Property from at least completion of Mr Bradshaw's purchase in November 2006 and remained until Mr Bradshaw vacated the Property in May 2007. Mr Biner's evidence is that at least twice a week he stayed with Mr Bradshaw. This indicates that during the term of the second tenancy, until May 2007, four and frequently 5 persons resided at the two bedroom Property]. 3. In his oral evidence to the Tribunal on 11 September 2020 at pages 71 and following of the transcript, Mr Bradshaw conceded that a ledger, in evidence at page 16 of the s 58 documents, shows rent received by the managing agent of the Property on behalf of Mr Bradshaw for the 2007 financial year, The ledger disclosed no rent from July to November 2006 and then $1,682.86 for December 2006, $2,320 for January 2007 and then amounts varying from $1,600 to $2,400 for the months of February 2007 to June 2007. 4. At page 75 Mr Bradshaw denied being aware before he purchased the Property that he would need rental income to be able to afford to effect the purchase. Mr Bradshaw also said after he moved in he had a bit of a downturn in the hours he was working in the hospitality industry. He conceded that a tenancy agreement was in place before he resided at the Property. At page 76 Mr Bradshaw said "… after the place had settled and everything that is when I lost a few hours out at work (sic) and I was struggling a little bit … It wasn't until about January that I started losing some money and, you know, lost hours and things were going down the hill. I don't remember exactly what date it was …" 5. Mr Bradshaw was then referred to his statement which included "… I was working most of the time and needed the rent in any case …" Mr Bradshaw insisted that he needed tenants to help him pay the rent (sic), he did take a downturn in wages and did lose hours after he purchased the Property and he "… was struggling pretty badly financially … At the time when I purchased [the Property] of course I could afford it. …after the situation changed later on is when I moved back into [the Property] and I lived there by myself, it was my property. After that I never had any renters in there until it was sold. I had an extreme downturn in work. I lost a lot of income ... " 6. At T1-82 Mr Bradshaw denied that from the time he purchased the Property it was always in the back of his mind that he might need to rely on rental income. His said his sole purpose was to move in and be independent on his own. When he purchased the Property, he could afford it.
3. I note that Mr Bradshaw produced no evidence as to his financial assets or liabilities (other than the cost of purchasing the Property and the amount he borrowed secured by mortgage), nor his overall income, and minimal evidence as to his expenses throughout the period he owned the Property. Mr Bradshaw did not identify his employer at any time nor provide corroborative evidence as to his wages nor other sources of finance to meet his (unsubstantiated commitments) nor the substantial reduction he claimed occurred to his financial position shortly after purchasing the Property. As mentioned elsewhere in these reasons, the onus is on Mr Bradshaw to prove his case on the balance of probabilities. This onus is not satisfied by him making unsupported, inconsistent statements and by the contradictory evidence of his witnesses. In short, I find much of Mr Bradshaw's evidence highly implausible.
4. In his statutory declaration Mr Bradshaw said he had to sell the Property [in 2010] as he could no longer keep up with mortgage payments and strata levies. He also said he could not pay the rent and had no money to feed his wife and children. Mr Bradshaw provided no objective evidence to corroborate any of these assertions. Without probative evidence, I am not satisfied as to the accuracy of Mr Bradshaw's above assertions, many of which I find to be contradictory and implausible.
5. At AS [8] and [9] the Applicant resiled from his sworn evidence that he did not lease the Property at any time. He conceded there were at least two formal tenancies and in addition he shared the Property during his ownership with Miss Kovacic "from the 6th May 2008" without mentioning any prior occupancy of the Property by Miss Kovacic such as stated by Mrs Kovacic. Mrs Kovacic's evidence was that Miss Kovacic resided in the Property with Mr Bradshaw from about November 2006 until May 2007 and subsequently until Mr Bradshaw sold the Property.
6. The initial question to be answered is whether Mr Bradshaw complied with the Residence Requirement without relying on the discretionary powers of the Tribunal.
7. Evidence from Mr Bradshaw is that he lived at the Property from prior to purchasing it until May 2007 and returned to the Property in 2008. After he returned to the Property in 2008, he remained there and shared expenses with Miss Kovacic, until he sold the Property in 2010. I

Purchase of Long Jetty property

1. Pages 89 to 92 of T1 include a cross-examination of Mr Bradshaw in relation to his purchase of a property at Nirvana St. Long Jetty (the Long Jetty Property).
2. Mr Bradshaw agreed he purchased the Long Jetty Property for about $260,000 in August 2007. He said he purchased the property for his parents as an investment for them because they did not have a good credit rating at that time while he then, and at the time of the hearing, did have a good credit rating. Mr Bradshaw applied for a loan secured by a mortgage over the Long Jetty Property. Mr Bradshaw said his parents paid the deposit, stamp duty and all other costs. His parents wanted to buy an investment property, renovate it and sell it. Mr Bradshaw described the Long Jetty Property', at T1 page 91, as: The place was an absolute dump. The electricity in the place didn't work, it didn't have an inside toilet, the house itself was disgraceful, it needed a full renovation.
3. Mr Bradshaw did not recall the identity of the lender. He recalled that in the days of "low doc loans" you needed nothing "… as long as you could afford it you could do it … "
4. There is no corroboration of Mr Bradshaw's evidence as to the involvement of his parents in the purchase and ownership of this property nor is there any evidence as to the capacity of his parents to finance the mortgage-loan nor to pay for what Mr Bradshaw described as "… a full renovation …".
5. The Chief Commissioner submitted: 133 … the documentary evidence shows the applicant purchased a property, in addition "to the Apartment, at a time proximate to when he says he was "struggling pretty badly financially." It casts significant doubt on that claim and, in the absence of any explanation capable of discharging his statutory onus, exposes his evidence as unreliable on whether he was suffering financially.
6. Mr Bradshaw provided no evidence as to his overall financial position at any time. There is no evidence before the Tribunal to corroborate his claim that he had a good or clear credit rating in about August 2007 nor how he could have shown to the lender who financed the purchase of the Long Jetty Property how he could afford to renovate and finance the payments due on the loan. Nor, especially having regard to his statement that his parents did not have a good credit rating at the time, is there any evidence as to how they could make the loan payments especially as the property was apparently uninhabitable and likely to remain so without "… a full renovation …". Mr Bradshaw provided no details as to whether or not any renovation, full or otherwise, was undertaken.
7. The onus lies on Mr Bradshaw to prove his case and there is no such onus on the Chief Commissioner. Having regard to the unanswered questions raised by this transaction and the inconsistency between Mr Bradshaw's evidence concerning the Long Jetty Property and his evidence concerning his financial position regarding the Property, I find that I am not convinced on the balance of probability, that the whole of Mr Bradshaw's evidence as to the Long Jetty Property, his financial involvement in its acquisition, and his financially distressed position is both plausible and accurate.

Compliance with the Residence Requirement

1. In order for the Applicant to succeed in overturning the Assessments he must either prove on the balance of probability that he satisfied the Residence Requirement or that there are sufficient good reasons for the Tribunal to vary the residence requirement or exempt him from complying with it.
2. The Chief Commissioner referred, at [149] and following, to the decision of the Appeal Panel of the former ADT in Chief Commissioner of State Revenue -v- Ferrington (GD) [2004] NSWADTAP 41 (Ferrington) at [41] and following.
3. In Ferrington, the Appeal Panel, considered an appeal by the Chief Commissioner against a decision of the former ADT to set aside a decision of the Commissioner reversing an earlier decision to pay the respondent, Ms Ferrington, a grant under the Grant Act as it then was.
4. After consideration of several appellate judicial and tribunal appeal panel decisions outlined the meaning of "occupy" and "principal place of residence" in the context of a first home owner grant, the Ferrington Appeal Panel held at [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 premi'es for a short time on a transient, temporary, or contingent basis, but one can also occupy for a short time as one's principal place of residence. It is the nature of that occupation which provides the element of permanence. The fact that a period of actual occupation is short, as in the present case, will in practice make it harder for a recipient to show that the occupation was as his or her principal place of residence, but it will not make it impossible … Sixthly, the reasons for a person's departure from the home must be both reasonable and adequately explained when considered objectively in the light of their personal circumstances … In Bates the Tribunal said that "whether the reasons for not residing at the property were as a result of matters entirely out of the control of the applicant" was a factor to be considered. While that is undoubtedly correct, it should not be read as stipulating a requirement that the reasons for departure must be entirely out of that person's control. The facts in Gaines illustrate that there are circumstances, peculiar to the individual concerned, which may, objectively viewed, adequately and reasonably explain a person's decision to move out of a property, but which are not entirely out of the person's control.
5. There were no submissions to the contrary and I accept the principles outlined above by the Ferrington Appeal Panel.

Supervision and control

1. The Chief Commissioner referred at [151] to Ferrington at [29] where the Appeal Panel said: 29 In construing the word occupy in s 12(1), regard must be had to its context … it is clear that in order to occupy a home for the purposes of s 12(1) it is necessary that a recipient of a grant have legal ownership of the premises, as assisting in the purchase of a home is a central purpose of the Act. [While Ms Ferrington] … had lived in the home … she was the person with the immediate supervision and control of the premises and the power of permitting the entry of other persons. In the commonly accepted sense of the word Ms Ferrington was occupying the home …
2. In contrast to Ferrington at [29], the evidence before the Tribunal shows that: 1. from 10 July 2006 until at least 9 January 2007, pursuant to the First Tenancy Agreement, the then tenant had the right to occupy the Property. That Agreement provided that no more than one person could ordinarily live in the premises. However, there is no evidence that the tenant, through his/her occupancy rights, was not empowered to invite such persons as he/she desired onto the Property; and 2. from 24 January 2007 until at least 22 January 2008, pursuant to the Second Tenancy Agreement, the then tenants had the right to occupy the Property. That Agreement provided that no more than two persons could ordinarily live in the premises. However, there is no evidence that the tenants, through their occupancy rights, were not empowered to invite such persons as they desired onto the Property nor that those tenants were not empowered to prevent the entry of such person as they may nominate.
3. It may well be that the tenants under their respective tenancy agreements had granted licence(s) to Mr Bradshaw to reside in the Property and / or invite persons into the Property for various purposes. However, except that the evidence referred to above asserts that Mr Biner, Miss Kovacic, Mrs Kovacic and Mr Kovacic (the invitees) had, at various dates during the Tenancy Agreements' terms visited, slept or resided in the Property, there is no objective evidence that invitees had not attended the Property with and subject to the express consent of the persons named as tenants in the two Tenancy Agreements, who occupied the Property.

Communications between Mr Bradshaw and the Chief Commissioner

1. At [12] the Applicant submitted that the Chief Commissioner did not act in a timely manner in dealing with compliance. The Applicant submitted it is a requirement under "the Acts" for the Chief Commissioner "to not only issue an Assessment to the applicant in writing, the Chief Commissioner must also notify the Applicant of the reasons why the Chief Commissioner made its decision …" In this matter the applicant contends that the respondent sent a notice dated 22/11/10 some 4 years after the acquisition of the property by the applicant. Furthermore, the notice did not stipulate in writing the reasons for the assessment or its decision.
2. The Chief Commissioner made the following submissions: 166. On the same day as the assessments (ie, 24 September 2008), Greg Harland of the Office of State Revenue gave advise to the applicant. During the course of his cross-examination. The applicant agreed that the file note recording the advice was an accurate record, explained that he could not be sure of the date itself, but accepted it was possible it was the 24th (ie, 24 September 2008) and that "they were hassling me about it all." The "they" referred to by the applicant is submitted to be the Office of State Revenue. 167. The file note of advice of Mr Garland on 24 September 2008 is in the following terms: applicant Brendan advised that wasn't able to meet residency requirement due to lease. Explained to Brendan that he could either pay the grant back or request an extension. Brendan said that his solicitor will be assisting him to make the decision. 168. The respondent submits that it is obvious that this file note is a record of a telephone exchange which occurred between the applicant, on the one hand, and Mr Garland, on the other, on the date of the assessments being issued. Therefore, it should be accepted that the applicant was put on notice about the assessments having been made and that they were imminently going to issue to him 169. The file note of 23 October 2008, created by Arthi Kumar, clearly confirms that there was a telephone call between Mr Kumar, on behalf of the respondent, and the applicant. Rather than stating, for example, the applicant had not received the assessments, the file note indicated the applicant's engagement with the assessments and that, at that time, seemingly, he was minded to pay the assessments "very soon".
3. I have considered the file notes by Greg Harland and Arthi Kumar, at pages 40 and 119 respectively of the s 58 documents, referred to in the above extracts and, subject to minor typographical errors, satisfied myself as to the accuracy of those extracts.
4. I have also considered: 1. at pages 31 to 33 of the s 58 documents, the letter headed Repayment of First Home Grant and the notice headed First Home Grant Notice of Assessment both dated 24 September 2008, stated to be issued to Mr Bradshaw on that date under the Grant Act, The letter states the decision made to reverse the previous decision to pay Mr Bradshaw the grant was on the grounds that he failed to meet the residency requirement. 2. at pages 34 to 36 of the s 58 documents, the letter headed Reassessment of First Home Plus duty exemption or concession and the notice headed Duties Notice of Assessment both dated 24 September 2008, stated to be issued to Mr Bradshaw on that date, having regard to the TA Act and the Duties Act. The letter states the decision made to reverse the previous decision to give Mr Bradshaw the first home plus duty exemption or concession and to re-assess the situation was on the grounds that he failed to meet the requirements specified in s 76 of the Duties Act. 3. Mr Bradshaw agreed that the two notices referred to above were issued but claims the notices were not issued on the dates stated on the documents and he did not receive them. He asserts that at the relevant date he resided at the Property.
5. During his cross-examination, Mr Bradshaw was asked about a conversation recorded on a file note by an officer of the Office of State Revenue, Arthi Kumar. That conversation and file note are referred to at RS [169]. The transcript at T1 pages 92 and 93 show that Mr Bradshaw acknowledges the phone number in the file note is his phone number, the note includes his name, there is a reference to a date of a conversation on 20 October 2008. However, Mr Bradshaw says he does not recall any such conversation
6. At [166] the Chief Commissioner submitted: "During the course of his cross-examination, the applicant agreed that the file note recording the advice was an accurate record, explained that he could not be sure of the date itself, …
7. However, the transcript, at T1 page 95 line 15 to page 96 line 16, shows that during the hearing the file note was read to Mr Bradshaw by Mr Richardson and initially agreed to by Mr Bradshaw. After further discussion Mr Bradshaw said he was agreeing that Mr Richardson had accurately read the file note, however, Mr Bradshaw said he was not agreeing that the file note was an accurate reflection of his telephone discussion with Mr Harland on about that date.
8. Mr Bradshaw said several times "they were hassling me" "about it all".
9. While Mr Bradshaw denies being a party to specific conversations, the Chief Commissioner submits at [167] that the "they" referred to by Mr Bradshaw in relation to the "hassling" refers to the Office of State Revenue.
10. Mr Bradshaw or his representative, Mr Kovacic, have been in possession of the s 58 documents including the file notes of the above conversations, from December 2019, some 9 months before the first hearing day. The Tribunal is not aware of any attempts by or on behalf of Mr Bradshaw to clarify any issues concerning those file notes or the dates on which the Chief Commissioner asserts the letters and notices were issued. I repeat, as Mr Bradshaw and his representative are well aware, the onus lies on Mr Bradshaw to prove his case by probative evidence, it does not lie on the Chief Commissioner.
11. In the fifth un-numbered paragraph of his statutory declaration of 14 December 2018 Mr Bradshaw states that if required he can supply "further" statutory declarations of witness(es) "proving … that [the Property] was never rented out for investment purposes". I observe that no statutory declarations from third parties are in evidence from the Applicant other than that of Mr Biner dated 15 February 2018.
12. At AS [13], filed 21 July 2019, the Applicant submitted Mr Bradshaw did not consider updating his electoral roll address or his driver licence address "… as he felt it was not necessary as he still resided in NSW and he could do a postal vote if required ...". In his statement dated 29 May 2020, Mr Bradshaw said at the seventh un-numbered paragraph "I did not think to change my address on my Driver's (sic) Licence as I was aware that I would not hold on to [the Property] much longer than 12 months after purchasing [the Property] …
13. The Applicant's submission as to Mr Bradshaw's early awareness that he would not hold the Property much longer than 12 months is not supported by the undisputed evidence that Mr Bradshaw settled his purchase of the Property in November 2006 and sold the Property in July 2010, more than 3 ½ years later. However, to the extent that it the submission is accurate, it may be contrary to the third and fourth Ferrington principles, namely for the Tribunal to have some regard to the intention of the person concerned and a person's occupation of the Property not being transient, temporary contingent or of a passing nature. 16. Only the first page of the Second Tenancy Agreement is in evidence. Relevantly, it states: The landlord gives the tenants the right to occupy [the Property]. The premises are Unfurnished No more than Two (02) person (sic) may ordinarily live in the premises at any one time.

Mr Bradshaw's evidence as to his ownership and occupancy of the Property and his financial situation

1. Mr Bradshaw's evidence included: 1. In his statement: At the first dot point - Prior to the settlement and ownership of the proIty, I resided at the property with another occupant … I became the owner when it settled on the 24/11/06.... As I needed the income to pay for the mortgage and strata fees, I maintained the existing tenancy. The apartment was a 2 bedroom apartment with 2 bathrooms. So it was easy to live with a share tenant at the time. At the fourth dot point - … [the Property] was rented to the second tenant on the 24/01/2007. The second tenant was aware of the shared accommodation with me. I allowed the second tenant to have 2 people as the apartment had ample facilities to satisfy more than 3 occupants and I was working most of the time and needed the rent in any case and didn't want to wait any longer to rent the property out due to the ongoing mortgage and stamp duty costs.. At the sixth dot point - Once the second tenant vacated, I moved back down to Sydney for work and lived at the property until I sold the property. I shared the expenses of the property with Monica Kovacic, without a formal lease as I could no longer afford to pay any agent co-missions and Monica was the daughter of a friend of mine. At the eighth dot point - After the expiration of the second tenant, I continued to live at the property, This continued until I sold the property. At the ninth dot point - On the 19/11/2010 … On Page 114 - It is noted that I spoke to Thomas Millett in which I clearly stated that whilst the property was rented some 2 months prior to my ownership, I at all times lived at the residence.
2. To the extent that the above evidence given by Mr Bradshaw in his statutory declaration and statement, contradicts findings I have already made, I reject that evidence.

Decision

1. Having regard to the above findings on the material before me, the correct and preferable decision is to make the orders below.

Orders

1. The decision of the Chief Commissioner under review as to: 1. repayment of the first home owner grant under the First Home Owner Grant Act 2000 is affirmed; 2. payment of a penalty pursuant to the letter issued 24 September 2008 headed "Repayment of First Home Owner Grant" and the "First Home Owner Grant - Notice of Assessment" also issued 24 September 2008, is set aside. 3. payment of duty under s 76A of the Duties Act 1997, plus interest and penalty tax under the Taxation Administration Act 1996, is affirmed.

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: 18 February 2022