Bulgak v Chief Commissioner of State Revenue

NCAT Administrative and Equal Opportunity|2015-06-04

Solicitors: In Person (Applicant) Crown Solicitors Office (Respondent) File Number(s): 1410528

Judgment

On 22 September 2014, the applicant filed an application for administrative review of a decision of the respondent on 26 February 2014, reversing its decision to pay him a grant under the First Home Owner Grant (New Homes) Act 2000 ("FHOG Act"). For the reasons that follow the Tribunal has determined to allow the application.

Background

On 30 December 2011, the applicant exchanged contracts on the purchase of a unit at Campbelltown ("the property"). Settlement took place on 1 March 2012.

Jurisdiction

Jurisdiction to review the decisions to which objection was made is conferred on the Tribunal by s28(1) of the FHOG Act and s96(1) of the Taxation Administration Act 1996 ("the TA Act").

Powers of Tribunal on review

On a review the Tribunal may confirm, vary or reverse the decision of the Chief Commissioner and make orders as to costs or otherwise as it thinks fit.
In determining the application the Tribunal is to determine what is the correct and preferable decision having regard to the material before it. In doing so, the Tribunal may exercise the functions conferred upon the respondent: s.63(2) Administrative Review Act 1997.

Onus of proof

The applicant bears the onus of proving his case in a review by the Tribunal (s28(3) of the FHOG Act and s100(3) of the TA Act).

The First Home Owner grant

The purpose of the FHOG Act is to encourage and assist home ownership by establishing a scheme for the payment of grants to first homeowners.
Section 12 of the FHOG Act relevantly requires that the applicant satisfy certain eligibility requirements, relevantly in this case what is known as the residency requirement. No grant is payable under the FHOG Act unless an applicant complies with the eligibility criteria and completes the purchase of a home with an eligible transaction (s7 of the FHOG Act).
This requires that an applicant occupy the home for a period of no less than six continuous months and commence that occupation within 12 months of settlement. In this case, it required that the applicant commence occupation on or before 1 March 2013 and occupy the property continuously from that date until at least 1 September 2013.
In accordance with section 20(1) of the FHOG Act, the application for the grant may be approved in advance of the applicant meeting the residence requirement. That occurred in this case.

Stamp duty concession

Similarly the scheme established a stamp duty concession, as set out in section 69 of the Duties Act 1997 ("Duties Act"). The exemption from duty that is otherwise payable was also intended to assist those acquiring their first home.
Section 76(1) of the Duties Act contained at the relevant time an eligibility requirement that was materially the same as the requirement for a grant.
Similarly, in accordance with section 76A of the Duties Act, the concession was obtained in advance of the applicant meeting the residency requirement.

Issues

The respondent does not dispute that the applicant acquired the property by completing an eligible transaction. However the respondent disputes that the applicant has complied with the residency requirement for the payment of the grant and obtaining of the stamp duty concession.
The only issue before the Tribunal is whether the applicant has satisfied the onus of establishing compliance with the residency requirement, that is whether the applicant occupied the property for a period of no less than six continuous months within twelve months of settlement of the property.
If the applicant does not succeed, the grant is repayable and the stamp duty previously exempted is payable. In addition it is for the Tribunal to determine in that circumstance, the amount, if any, of penalty to be paid by the applicant in relation to the grant and the interest payable in relation to the unpaid stamp duty.

The Applicant's Evidence

The applicant, who represented himself before the Tribunal, relied on the following written material: 1. Administrative Review Application Form dated 9 September 2014; 2. Statutory declarations of Serguei Bulgak and Elena Bulgak, each dated 15 July 2014; 3. Affidavit of the applicant dated 11 February 2015; 4. Electricity usage affidavit of the applicant dated 11 February 2015 5. "Correction of prior errors" affidavit of the applicant 6. RTA documents; 7. Application form from Ray White Real Estate dated 1 May 2014; 8. Tax File Number declaration dated 3 May 2013; 9. PAYG Payment Summaries dated 8 July 2013 and 30 June 2014; 10. Contract for Sale of Land dated 19 August 2013 for purchase of a property at Campbelltown; 11. Home Loan contract dated 17 January 2012 (page 5); 12. A graphic representation of electricity usage prepared during the hearing;
The applicant and his parents also gave evidence on oath before the Tribunal and were cross-examined. All witnesses called on behalf of the applicant, including the applicant, struck me as honest and it appeared that they were doing their best to give accurate and reliable evidence.

Evidence of the Applicant

The applicant purchased the property on 1 March 2012. Accordingly, he was required to reside in the property by 1 March 2013 in order to be eligible for the grant and duty concession. He viewed the property before exchange on one or perhaps two occasions. He was aware of the general dimensions and condition of the property but did not thoroughly examine each aspect of the property. However, it was apparent to the applicant that the property was in quite poor condition. He stated that he had particular plans to renovate the property, including painting it throughout and replacing the floor coverings.
So far as the need to renovate the bathroom was concerned, the applicant stated that he did not notice cracking to the glass panels in the shower cabinet prior to settlement.
So far as the bedroom was concerned, he did not notice that the floor was wet. He said that he noticed an unpleasant smell (which presumably might have been indicative of the floor being wet beneath the carpet although that was not specifically suggested to him in cross-examination) but he put this down to the dirty socks and underwear that were lying around (left there by the existing tenants).
So far as the kitchen was concerned, the applicant noticed that the kitchen ceiling was heavily stained and that part of it had flaked off. However, he stated that at the time, it did not occur to him that the staining and damage was as a result of water damage. He saw what he described as yellow discolouration and stains, but it did not occur to him that this indicative of water leakage. He did not notice the cracking to the tiles in the kitchen.
He did not notice cracking through the walls throughout the property.
Accordingly, although he accepted that he expected to renovate the property prior to occupation, he did not believe when he purchased the property, that he would need to do a significant amount of renovation. He knew that he could not immediately occupy the property, but he did not realise that he needed to do anything, for example to the kitchen, other than for cosmetic purposes.
It was suggested to the applicant that after he purchased the property on 1 March 2012, he continued to lease the property and permitted the tenants to continue according to the terms of their lease. The applicant rejected this assertion and stated that he "allowed them to keep living there. They were on an expired lease, month to month. Prior to settlement, I terminated the agency, and they were given notice by the vendor. If they were there after 10 April 2012, they were trespassing. The lease was terminated by the vendor at my request." He did not sign a new lease with the existing tenants.
His evidence was that between 1 March 2012 and 10 April 2012 (for some 38 days) he received rent in the sum of about $1487. This was not seriously in dispute before me.
A little more than a week prior to the deadline for occupation of the property, on 21 February 2013, the applicant sought an extension of time from the respondent to meet the residency requirement so that he could complete the renovations prior to moving into the property. He expected the respondent to comply with the request.
Some of the respondent's copies of correspondence with the applicant, tendered in the Tribunal, are incomplete. Accordingly it was necessary for the applicant to give evidence as what he had written in those documents to the respondent in seeking his extension of time to reside in the property. His evidence about that was not in dispute.
On 21 February 2013 the applicant informed the respondent in writing, "Notwithstanding the above [where he set out a history of the works required a the property], I am able to meet my residency requirement if I take leave from work".
On 25 February 2013 (some three days before the expiration date), the respondent responded seeking further information.
Having realised that the respondent was not immediately going to grant an extension, the applicant took the view that it was safer to move into the property. He was challenged on his response to the respondent in respect of, for example, the collection of photographs or the provision of any relevant rental agreement and ultimately accepted that some of the things being asked for where relatively straightforward, particularly compared to moving into the property before it was completed. However, his evidence was that at the time he thought that what the respondent was asking for seemed to him to be "a substantial burden. It would have been easier to let it go". Essentially his evidence was, and I accept, that by this time he was concerned that he would not have got anywhere with the respondent prior to the deadline to occupy the property and that the burden presented at the time to him was not only in gathering the documents, but also in the risk of the decision being made against him in any event. Further he stated that he was going to move into the property soon in any event, so it was not particularly onerous to move in early.
Accordingly, on 14 March 2013, the applicant informed the respondent that he did not wish to proceed to seek an extension in relation to his residency requirement, that although some work remained outstanding on the property, he has occupied the property since 1 March 2013 and that he would not be changing his address.
In the period of February and March 2013 the applicant undertook renovations to the property, spending significant time at the property to do so. He moved from his parent's home and into the property on 1 March 2013, moving all his belongings, including his bed. He accepted that he may have moved further items after 1 March 2013, but he did not recall. He stated that he made his bed at the property at this time. He rejected that he had taken with him the "bare minimum" that he needed. He asserted, and I accept, that he took with him all the things he considered that he needed to live.
The applicant was cross-examined as to what he now asserts is a misstatement in his objection document to the respondent, where he stated that he took occupation from 28 March 2013, rather than 28 February 2013. He explained, and I accept, that with the benefit of reviewing his employer's leave records he now knows that this is likely to be 28 February 2013. The leave records support this assertion. He also stated, and I accept, that he was constantly mindful of the date required for occupation (being the end of February 2013) and in ensuring that he was going to comply with his requirement to move into the property by that date. He was challenged as to his recollection of the dates and it was suggested that he had no independent material to support his evidence (other than the Marsdens leave records). He rejected this and pointed to the fact that on 14 March 2013, he had already changed his residential address on his Roads and Maritime Service ("RMS") records to that of the property and that this was the last available date to properly comply with his obligations to the RMS to change the address (presumably being some two weeks after occupation of the property).
The applicant accepted that the electoral roll records his parent's address as being his address and not the property. He accepted that on or about 3 March 2013, the Australian Electoral Office ("AEO") processed a form, which nominated that address. However, he said that he thought it highly likely that he completed the form before 3 March 2013. It is important to note that as late as 24 February 2013, the applicant was of the view that he could likely obtain an extension from the respondent and not be required to move into the property before 1 March 2013. He further stated, and I accept, that he did not think about it 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 property were within the same electoral boundary.
Counsel for the respondent challenged the applicant to the effect that a tenant by the name of Michael Conduit (who had resided in the property up until at least 10 April 2012) maintained the property as his address on formal records until 15 July 2014. The applicant stated, and I accept, that although he was aware that there were two tenants when he purchased the property, he had never met anyone known as Michael Conduit, that he was not aware that Mr Conduit had maintained the property as his address on documents, that he was not aware of Mr Conduit's electoral enrolment details, that he did not know Mr Conduit, was unaware of his movements and had no way of knowing what information was provided on the records.
When I enquired of counsel for the respondent whether or not it was the respondent's case that Mr Conduit remained in the property until about 15 July 2014, it was submitted that the records maintained by Mr Conduit were a factor to consider in determining the nature and quality of the use of the property by the applicant. I am of the view that unless there is evidence, either from Mr Conduit or from some other source, that Mr Conduit continued to reside in the property after 10 April 2012, then this evidence cannot prove anything about the nature or quality of the use of the property by the applicant. It is just as likely that Mr Conduit failed to keep his records up to date.
The applicant was cross-examined on the statutory declarations completed by his parents. The applicant readily conceded that the declarations were "made similar" as it was not possible to make a joint declaration. He accepted that the contents of the statutory declarations were done on understanding of what his parents could say. He candidly accepted that the statutory declarations had his input, particularly as his parents responded to his questions in their native language Russian and not in English. He recalled that his mother wrote out answers and he typed them into the statutory declaration. He did not recall speaking to his father about the statutory declaration. He denied however, and I accept, that he "put words in their mouths" and he stated that he did not suggest to either of them the date of 28 February 2013 as being the date that he moved into the property.
It was never suggested to the applicant that his evidence about moving into the property on or about on 28 February 2013 was not true.
Accordingly, on the evidence, and given that I accept the applicant's evidence on this issue, I find as a matter of probability that the applicant moved into the property on 28 February 2013, and took with him all the items that he needed to live.
It was suggested to the applicant in cross-examination that by July 2014 the applicant had significant financial difficulties and that this remained the position. The applicant denied this suggestion and gave evidence that he undertook further borrowings and that the property market improved.
If the evidence is to be used to suggest that the applicant had a motivation to obtain the grant and the stamp duty concession when he had no intention of residing in the property, then evidence as to his financial position as at July 2014 is completely irrelevant to that question, and as such I have disregarded it. No other reason was put forward by the respondent. In any event, I accept his evidence that he did not have financial difficulties. No evidence was presented to the contrary.

Evidence of Serguei Bulgak

The applicant's father, Serguei Bulgak, provided a statutory declaration as to the applicant moving into the property and his subjective intention to live there. He also gave evidence on oath before me with the assistance of a Russian interpreter.
His evidence was that prior to moving to the property, the applicant lived with he and his wife and their other child, in what was considered the family home. At that time, prior to 1 March 2013, it was the applicant's habit to sleep at the family home but not to eat there regularly. In particular, Mr Bulgak said that the applicant would not eat breakfast at the house regularly and, although his wife cooked dinner for the family as a whole, the applicant would only eat it when he could.
It was Mr Bulgak's understanding that prior to the applicant moving into the property, he had always wanted to buy his own dwelling and move out of the family home.
There was a level of conflict in the family because the applicant's lifestyle made it such that it was very difficult for the family to live together. During the relevant period both Mr Bulgak and his wife worked in hospitals and woke at about 4.30am each day. The applicant, on the other hand, was home late and often woke them. He stated that his son's lifestyle was such that even when he was living at the family home, Mr Bulgak only saw him about once a fortnight as Mr Bulgak gets up and goes to bed early and the applicant is out late such that their paths rarely crossed.
He said, and I accept, that it was very difficult for them all to live together and the applicant wished to move out. The applicant spoke to his father rarely. They had a very tense relationship at that time and, as the applicant's father understood it, that motivated the applicant to do everything he could to move from the family home.
Mr Bulgak did not see the property until about approximately one year after the applicant bought it, when he viewed it in the context of there being some problems with repairs to it. His wife had told him however, that the property was in an awful condition.
It was Mr Bulgak's understanding that the applicant wanted the tenants to move out as soon as possible so that the applicant could undertake renovations to the property. The applicant bought beautiful chandeliers and fireplaces for him to enjoy in the property and not for tenants.
Mr Bulgak understood from his wife that the applicant made mistakes in performing the renovations and so he offered to help him, although the applicant declined, wanting to do it all himself. It appears from the evidence that the renovations took much longer than expected.
Mr Bulgak was cross-examined about the contents of his statutory declaration, and he candidly accepted that he and his wife discussed what to put in it and that he does not write English. He also candidly agreed that either the applicant or his wife typed the document. He also stated that either his wife or the applicant wrote the English words. He agreed that he did not read English very well, but when asked to read the declaration whilst being cross-examined, although he read it haltingly, he did so mostly accurately.
Importantly, he denied that the information in it was incorrect. He stated "when we found out [the applicant] had some problems, we offered to write some document to tell the truth to someone who needs to know", referring to the respondent. He also stated "we offered [the applicant] that we would write a document and sign because we know exactly when he moved out".
He denied that he spoke to the applicant, prior to signing the statutory declaration. He stated, "Because I did not talk with [the applicant] much. Because I was very angry with him. He wanted to do everything himself."
Mr Bulgak also denied that he discussed the matter with his wife before completing the declaration, with a view to ensuring that their account was the same. He stated, "We were discussing the event what happened … her or I could forget, so we sat together. It was a year that had passed. We could forget something in that amount of time, so we sitting together and trying to remember things. We did not know we had to go to court and see who was writing what. We just tried to help our son who was in a difficult situation. We know that he left and lived there in awful conditions, but he lived there. So we decided to help him."
As to the date the applicant left the family home and moved into the property, Mr Bulgak gave evidence that the applicant was a very responsible person and was constantly telling he and his wife that he had to move out by 28 February. He recalls that they brought empty boxes from the hospital at this time to pack his things and assist him to move out. Mr Bulgak and his wife were also telling the applicant that he must move out by this date. He recalled that the applicant was getting nervous about the date and saying that he had to be at the property by that date and that he had to live there although the renovations were not complete.
Mr Bulgak also candidly stated that he did not remember the date that the applicant moved out of the property and back into the family home. His statutory declaration says that it was in December 2013. He said that the applicant lived in the property for approximately one year and a half. It is noted that this evidence cannot be accurate. However, I am of the view that an inaccuracy of this kind, given that he accepted that he could not remember the date that the applicant moved back into the family home, did not affect my view that he was doing all he could to give truthful and accurate evidence as to the relevant matters, namely the date the applicant moved into the property, what he took with him when he left, and the applicant's expression of his subjective intention to live there. The evidence is not otherwise relevant in the sense that there is no suggestion by the respondent that the applicant occupied the property for less than six months.
I noted that Mr Bulgak appeared at all times to be attempting to give honest and reliable evidence. He often conceded matters against the interest of the applicant and on the whole I accepted his evidence.

Evidence of Elena Bulgak

The applicant's mother, Mrs Elena Bulgak, also provided a statutory declaration and gave evidence on oath and was cross-examined, with the assistance of a Russian interpreter.
Her evidence was that prior to moving into the property, the applicant was working full time as well as studying. He would ordinarily sleep at the family home at night. He lived at the home, but requirements of work and study meant that he mainly came home to sleep. She recalled that his socialising at the family home was minimal. She stated, "He had friends over for his birthday". The applicant would keep all his belongings in the home. She stated that he usually ate breakfast at the home. Mrs Bulgak prepared dinner for him, which she would leave out and he would eat when he returned from work or study. He also showered there.
Mrs Bulgak stated that the applicant always planned to live separately from the family in the property.
Mrs Bulgak was aware that the applicant purchased the property and was aware that it was a flat, but she did not know when he took ownership. She could not recall precisely when she first looked at it. She stated, "I was there only once. After he already moved, when he lived there. Sleeping on the pillows - we decided to buy a mattress for him."
Mrs Bulgak gave evidence that, prior to 1 March 2012, she knew that the property was in a bad condition. She stated, "The place is not far from where we live. I pass by and I saw the building. It was in a very bad state, so I could assume it was bad." She also said that the applicant had told her prior to purchase that it wasn't in a condition that he could live in.
In re-examination, the applicant challenged his mother's evidence about only seeing the property once, after the applicant had moved in. She stated that she recalled that she was there once when he was there, sleeping on pillows and that memory brought back the memory of buying the mattress. However, when it was put to her that she also viewed the property in the presence of the real estate agent, she ultimately accepted that she did so. Mrs Bulgak had not been challenged on this in cross-examination and it was open to the applicant, who represented himself, to leave the evidence as it was. However, it struck me that the applicant had no desire to seek forensic advantage for himself in the case and that he was diligent in ensuring that the evidence before me was as accurate as it could be, even if it meant that his own witness was to be challenged about the accuracy of her evidence. Again, Mrs Bulgak struck me as a witness doing her best to tell the truth and give accurate evidence.
Mrs Bulgak denied that the applicant was intending to rent the property out after he purchased it. She stated, "He wanted to live there separately from us".
Mrs Bulgak stated that she offered to provide a statutory declaration to the applicant. She stated that she knew about the date that he moved from the family home. She stated, "Because I was packing all the things for him. He is very responsible and he always reminded me about the date when he had to move in. He started talking about that one week before he moved in, so I did not pack things the day before. That's why he wanted to move in on this date, so that's why I wanted to write about that in the statutory declaration. Me and his father were the only witnesses who actually knew when he moved into that property."
Mrs Bulgak candidly accepted that she did not write in English and did not write the statutory declaration. She stated, "I told my son to write it properly how it was supposed to be. I read it before I signed it. I asked him to write the statutory declaration from my words that I said." She said that she told him what to write, for example about buying the mattress, so that's what he did.
Mrs Bulgak accepted that the statutory declaration was identical to her husband's. She stated that because her husband does not speak English very well, she discussed with him what the applicant would put in the statutory declaration. She stated, "That's why it's identical - we discussed, then we put it. Discussed it all together." However, she denied that the applicant made any suggestions about what should go in it. She stated, "No, he did not put any suggestions, what's written here, that's what I wanted him to write, what I expected him to write."
Mrs Bulgak gave evidence that as she was packing the applicant's possessions, she knew the exact day that he moved out. She stated that she asked the applicant to write 28 February in the statutory declaration as the date he moved out because she remembered that that was the date. She denied that the applicant reminded her of the date. She stated, "No, he did not remind me. Because before he moved into his flat, he was reminding me a week before that he would have to move in not to break the law." She also stated, "I'd known exactly that date. Because he reminded me a week before that that's the date he would have to move in. And so according to that date, he moved out from my place."
Mrs Bulgak also stated that she recalled the date because it was the first time her son was leaving home and she was not happy about it.
Mrs Bulgak stated that she could not recall the exact day in December 2013 that he moved back to the family home.
Mrs Bulgak accepted that after the applicant moved to the property he would bring his work shirts to be washed by her every one or two weeks. She would not iron them, but return the washed shirts to him, which he would drop off and collect from the family home. She denied that he ever ate meals at the family home after he moved out.

The Respondent's evidence

The Respondent relied on documents that were included in the s58 documents and an affidavit of Oliver Berkmann dated 26 March 2015.

The Parties' Submissions and Consideration of the Issues

Date of Taking up Occupation of the Property

The applicant contended that he commenced occupation of the property on 1 March 2013. He accepts that if the Tribunal finds that he did not occupy the property on or before that date then his case must fail, notwithstanding the quality of occupation after that date.
Both parties agree that if the Tribunal finds that he did occupy the property on or before that date, then it is necessary to determine the nature and quality of that occupation.
The respondent accepts that the applicant has to establish that he moved into the property on or before 1 March (rather than 28 February) 2013.
The respondent pointed to the fact that at almost the 12 month deadline, on 21 February 2013, the applicant sought an extension to comply with the residence requirements and that the respondent, on 25 February 2013, sought information to consider the extension in circumstances where the deadline to occupy was 1 March 2013. The respondent relied on the fact that on 14 March 2013 the applicant replied saying that he was no longer seeking the extension and that when the respondent then launched an investigation and wrote to the applicant, requesting material, he received no response from the applicant. He says that if the applicant had moved in on that day he would have responded.
The respondent submitted that the applicant's parents had difficulty recalling the precise dates of particular events (when purchased their own home and when he moved back into their house) and that the Tribunal ought regard with caution the fact that they said they know the precise date that the applicant moved into the property as being 28 February 2013. The respondent pointed to the fact that the applicant's father rarely saw the applicant, and that they could go weeks on end without seeing each other. He submitted that it was evident that the relationship between the applicant and his father was strained. The respondent said that the applicant's father's explanation, that he was aware of 28 February being the specific date, because for a week or so before then the applicant said he had to move in by this date, is inconsistent with him saying that he rarely spoke to the applicant. The respondent otherwise submitted that the Tribunal wouldn't find the applicant's father to be reliable as to the date the applicant moved into the property.
The applicant submitted that the effect of the father's evidence was that his wife had told him during the week prior to 1 March 2013 of the date for the applicant to move out.
The respondent relied in particular on the fact that in the applicant's objection to the respondent's assessment on 22 April 2014, the applicant informed the respondent that he had taken occupation on 28 March 2013, some 28 days after the deadline. The respondent submitted that the applicant's position before the Tribunal is inconsistent with the objection document. He submitted that this is an important document and it could be expected that care was taken to ensure that it was correct.
If the statement in the objection is an accurate statement, the applicant accepted that his case must fail, notwithstanding any occupation after that date as this is outside the required 12 month period within which to commence occupation.
However, the applicant submitted that nothing could be taken from the fact that in his objection to the respondent, he misstated the date as to when he commenced occupation of the property (stating 28 March 2013 instead of 28 February 2013). He submitted that the date was simply wrong and that this had now been explained. He submitted that there are a number of pieces evidence that pointed to his occupation by 28 February 2013 or by 1 March 2013 at the latest. He submitted that the objection letter itself is the only place where 28 March is mentioned and that this was an error.
The applicant relied on the fact that he took leave from his then employer Marsdens and submitted that in light of the leave documents, the only days which he could have moved into the property is either 28 February or 1 March 2013 (being the second day of his leave from his employer). His recollection was that he took particular leave from work to move in. It is submitted against him that the 28 March 2013 is a four day weekend, being the Easter break and it is equally likely, given his uncertainty about the dates that he moved in then. The applicant disputed this. The applicant referred the Tribunal to his evidence that the taking of leave from Marsdens reminded him that he did this to move into the property. The applicant was not cross-examined to the effect that his evidence about this was incorrect, unreliable or untrue.
The applicant also relied on emails sent on 21 and 25 February 2013 respectively.
Further, the applicant referred the Tribunal to the email from him to the respondent on 22 April 2014 in which he responded to the respondent's notice of assessment, explaining his situation and seeking a reassessment. Nowhere in this document does it mention anything about the applicant not occupying the property within time. It appears to be written from the point of view that he had occupied the property within the 12 months required.
The applicant reminded the Tribunal that no criticism had been made by the respondent of the applicant's mother's evidence, about the date that the applicant commenced residing in the property.
I accept the applicant's submissions, particularly having regard to the leave records tendered and find that it is more likely than not that he occupied the property within the 12 month period, that is by 1 March 2013. He was clearly cognizant at all times of residing at the property by the deadline. This is consistent with the account given by both of his parents.

Quality of the Occupation

The relevant question is therefore whether the use that the applicant made of the property was of an extent and quality sufficient for it to be his principle place of residence. Accordingly it is necessary that I determine the quality and extent of the applicant's occupation of the property in the relevant period, that is from 1 March 2013 until 1 September 2013.
The respondent submitted that it is not necessary for him to establish precisely what occurred in the relevant period and that it is sufficient that he casts doubt over the applicant's version of events. I do not accept that submission as to do so would impose upon the applicant a higher standard of proof than is required by him to succeed in his application. I have approached this case on the basis that I have to determine ultimately whether it is more likely than not that the applicant satisfied the residency requirements so as entitle him to the grant and to the stamp duty concession.
The respondent argued that there needed to be a degree of permanence or long-term commitment to the residence. I accept that submission.
I was referred to the case of Deveridge v. Chief Commissioner of State Revenue [2010] NSWADT 268 and the respondent submitted that "principal place of residence" has it's ordinary meaning and refers to where the person ordinarily "eats drinks and sleeps". The respondent submitted that sleeping at a place does not of itself make that place a principal place of residence, and that it is also relevant: where the applicant eats; his use of electricity, furniture and fittings; and where he entertains. The respondent submitted that it was also relevant what address the applicant used as a residential address for his mail and on formal documents such as his electoral records and driver's licence.
The respondent submitted that, having regard to all of the factors referred to in Deverage and applied in Khalil v. Chief Commissioner of State Revenue [2011] NSW ADT 276, the Tribunal would not be satisfied that the extent and quality of use of the property by the applicant was sufficient to make it his principle place of residence.
In general, the respondent pointed to the applicant's admission that he used the property during the period for little more than sleeping, that his electricity use was low, that he left the property early in the morning and arrived home late at night. He also pointed to the fact that the applicant was sleeping on outdoor furniture for a time and that the property was undergoing renovation work during the relevant period.
The applicant agreed that whether he occupied the property was an objective test and it was necessary to consider the extent and quality of use by reference to various indicia, such as sleeping at the property, which, whilst it was not the sole matter to be taken into account, would be an indication of occupation, citing Deverich.
The applicant contended that in order to consider whether he occupied the property as his principal place of residence in the sense understood by the authorities, it was also necessary to take into account the fact that he had a busy lifestyle. He relied in particular on Mohamed v. Commissioner of State Revenue NSWADT [2012] NSWADT 169 and submitted that when this is taken into account, the evidence as to the relatively low levels of electricity usage and the like did not lead inevitably to the conclusion that the applicant did not reside in the property with the quality of occupation that had the sufficient degree of permanence to it (as understood to be required from cases such as Chief Commissioner of State Revenue v. Ferrington (GD) [2004] NSWADTAP 41). Ferrington makes it clear that some kind of permanence in residence is required, and that it ought not be temporary and passing in nature.
Furthermore, the respondent drew the Tribunal's attention to the fact that: the applicant waited approximately one year before taking up occupation in the property; that he earned income by leasing the property; that a reason to take up residency was to obtain the grant; and that in signing the contract, the applicant was not going to pull out of the sale, because he knew that after that date the grant scheme would cease to apply. As to the last matter, I have come to the view that whilst this shows a motivation by the applicant to purchase the property when he did, it is not evidence as to the reason why he chose to live in the property. The question of intention is dealt with below.
Referring again to Mohamed the applicant accepted that whilst whether an applicant is found to have occupied a property as his principal place of residence is an objective test, it is appropriate to take into account the lifestyle of the applicant in doing so. He submitted that as well as working full time at Marsdens Lawyers he also had university commitments, which continued when he was employed at Ray White Real Estate. He submitted that he also worked obtaining income from painting sometime between 1 July 2011 and 30 June 2012 and as such was not often at the property other than to sleep. He submitted that he was also in the process of undertaking the renovations to the property. The applicant submitted that the facts in Mohamed bore a close similarity to his situation. He further submitted that in that case there were tenants in the property for long periods, whereas in his case the tenants were only in the property for some 38 days at the beginning of his ownership. He submitted that it was necessary for me to approach the matter in the same way as had been done in Mohammed, by giving everything its due weight and taking into consideration the lack of a tenant residing throughout the whole period.
The respondent submitted that Mohammad dealt with a "very subjective test" having regard to the applicant's very specific circumstances, that the case did not have regard to the relevant authorities and in particular did not take into account the principles in Deveridge. The respondent submitted that the Tribunal ought exercise caution in carrying out the same approach in this case and that the Tribunal was to apply an objective test.
The applicant drew my attention to the fact that the six month requirement of residence within the first 12 months was introduced to respond to cases where people lived for short period in the property and then claimed the grant. The requirement that this be done in a 12 months period was to allow for a situation such as his, where the property was already subject to a tenancy or required repairs.
The applicant also submitted that in order to assess the quality of his occupation of the property, it is necessary to consider his lifestyle prior to moving into the property. He submitted that there was little change to his lifestyle, where he left early and came home late, and that his eating habits for example had not changed. He submitted that the evidence was that he moved everything that he owned out of his parents' home and into the property. He accepted that he slept on pillows for the first two months until he got a bed. The applicant further submitted that the fact that he used little electricity is consistent with his lifestyle both before and after moving to the property.
In general, the applicant submitted that the authorities take an overly narrow approach to residence requirements and that regard must be had to the spirit of the various pieces of legislation, which is to assist first home owners in buying their first property so as to live in it.
The applicant reminded me that in Ferrington for 11 months of the relevant year a tenant was residing in the property and that the applicant only lived there for 23 days. He cited Nakhoul v. Chief Commissioner of State Revenue [2009] NSWADT 103 in which the property was tenanted for 44 weeks, where there was financial hardship prior to the purchase of the property and where the applicant's parents moved into the property with the applicant so as to assist financially. He submitted that in that case, the applicant never intended to live there by himself and that it was in fact a new family home purchased in the applicant's name to take advantage of the grant.
The applicant further submitted that a tenant living in the property is only one indicia of intention, as it was in Ferrington.
I turn now to the various indicia of occupation.

Inhabitability of the Property as Revealed by the Respondent's Photographs

The respondent pointed to the fact that the respondent's officers attended at the property on 11 February 2014 and took photographs showing, it is contended by the respondent, that the property was not habitable.
The applicant submitted that the photographs are irrelevant, given that the six-month occupation period had ended by September 2013. Furthermore, he submitted that the photos show that the assertion made by the respondent's investigators that there was no furniture at the property, is incorrect, given the presence of bookcases, books and scales on the bench depicted therein.
Given that the photographs were taken some five months after the period during which the Tribunal is required to consider the quality of occupation, they will only be relevant if it can be established that the property was in a similar condition during the relevant time or one can infer something from them about the quality of occupation in the relevant period. Although there is evidence in the photographs that renovation work is being carried out, and there is evidence that renovation work was being carried out during the relevant period, I can draw no conclusion from the photographs alone as to the physical state of the property during the relevant period. Further there is no other evidence that links them in any way to the relevant period. Accordingly I find the photographs to be irrelevant and have disregarded them.

Use of the Statutory Declarations

As referred to above, as well as providing statutory declarations in respect of the applicant's residence at the property, the applicant's parents both gave evidence.
The respondent submitted that the statutory declarations ought be given little weight.
The applicant submitted that any caution that ought be attached to the documents is misplaced because the respondent did not cross-examine the applicant or his parents as to the whole of the statutory declaration. For example, he submitted, no questions to directed to the fact that all of his belongings were in the property and that any criticism that the statutory declarations were identical ought be considered given the evidence as to how they came about.
I accept that submission. However, even were I to completely disregard the statutory declarations, I have come to the view that the facts stated therein were proved in direct evidence given before me and that what cross-examination there was in respect of the statutory declarations did not cause me to disregard the evidence of either the applicant or his parents.

The Receipt of Rental Income during the First 12 Months of Ownership

The applicant received a gross rental income of $1487 for a tenancy that was in place during the first 38 days of the relevant period.
The respondent relied on the fact that the applicant was given the option of evicting the tenant immediately on completion, but he refused as he needed to re-carpet and renovate the property and the rental income would be useful for that purpose. The respondent submitted therefore that the use of the property immediately upon ownership was to derive income. The respondent submitted that the property was rented out twice whilst owned by the applicant. First, on initially taking ownership, then after he renovated it. The respondent submitted that the applicant lived in the property to obtain the grant, and then moved out again and rented the property, much in the same way as was done in Khalil v. Chief Commissioner of State Revenue [2011] NSWADT 276.
The applicant submitted that this submission is misleading as the first tenancy was subject to residual tenancy and the second tenancy did not occur until mid 2014, well after the period for occupation had expired.
The applicant further submitted that the fact that tenants remained in the property is not inconsistent with his intention to make the property his residence, as the first thing he did upon purchasing the property was to give the tenants notice to vacate. The fact that he earned a small amount of income prior to the tenants vacating he submits is of little moment.
The applicant also referred to the decision Nakhoul, which he distinguished on the basis that the applicant in that case was in no position to purchase unless he let the property.
I have taken into account the fact that the applicant earned a small amount of income as a result of an existing rental agreement in order to obtain some funds to renovate the property for his own use and that some time after the occupation period had expired, the property was again tenanted. I have also taken into account the fact that upon taking ownership of the property the applicant gave notice to the existing tenants to vacate and that they moved out of the property and that no other tenants were living in the property after that time during the relevant period.

The Applicant's Subjective Intention

The respondent submitted that the applicant's intention in occupying the property was for the purpose of retaining the grant and stamp duty exemption. The applicant submitted that his intention in purchasing the property was to move away from his parents and to reside in the property.
In support of that submission, the applicant relied on the uncontested evidence that he renovated the property with ornate cornices, feature tiling and a fireplace, to suit his taste.
The applicant stated that if he had only purchased the property to comply with the grant, then one would expect to see a tenancy on either side of the six month period. This did not occur and he resided in the property for longer than six months.
The respondent's submission is inconsistent with the applicant's evidence and the uncontroverted evidence of his parents.
The applicant submitted, and I accept, that his subjective intention was to purchase the property, renovate it and live in it. He submitted, and again I accept, that unknown problems prevented him from moving in earlier and resulted in a reduced ability to use the property that he otherwise would have.
I find that it was the applicant's subjective to intention to reside in the property as his principal place of residence.

The Nomination of Addresses in Formal Documents

The respondent submitted that the conduct of the applicant in respect of his enrolment with the Australian Electoral Commission Office ("AEC") is inconsistent with his residing in the property as his principal place of residence. The respondent in making that submission accepted that the registration of enrolment occurred on 3 March 2013, only two days after the applicant says he commenced occupation. The respondent also accepted that there might be a processing period such that the document prepared by the applicant may have been dated before 28 February 2013 but it is submitted that the applicant's conduct is nonetheless inconsistent with the applicant contemplating moving into the property.
The applicant accepted that he did not nominate the property as his residential address in the AEC documents. He sought to explain this in his evidence on the basis that the property was in the same electorate as his parent's address and even though he had moved, he did not believe it necessary to notify the AEC of any change of address. He was not challenged on this evidence
The respondent submitted however that very little of the applicant's mail was sent to the property and that he rarely used the address of the property in documents. He used his parent's address as his mailing address, for example with his employer Ray White (where he used his parent's address as the postal address and the property for his residential address). Similarly in RMS documents, he used his parent's home as his postal address and the property for his residential address. The applicant used just his parent's address in electoral forms. And whilst electricity was connected to the property, the bills were sent to his parent's home.
The applicant submitted that the reason why limited mail was sent to the property, and that in the main he used his parent's mailing address, was due to the fact that there was a lack of security in the mail box at the property and that he had experienced mail going missing. He denied that he did this because he was not residing at the property. He was not challenged on this evidence. He also pointed to the fact that on 14 March 2013, he changed his residential address but not his mailing address with the RMS. He explained that at time of changing the address with the RMS he telephoned and asked about the implication of changing his residential address. He was told by an officer of the RMS that if an emergency call was made from his number for example, a response car would be sent to that nominated residential address. The applicant also pointed to the fact that at the time he resigned from his employment with Marsdens, and upon joining Ray White Real Estate, he gave his address as the property.
I take into account the fact that the applicant rarely used the property as his mailing address (opting to use his parent's address). I also take into account that he did this, not because he did not regard the property as his home, but because he was worried about mail security.
I take into account that the applicant nominated his electoral address as his parent's address. I also take into account the fact that he did not think this was a necessary change and that he may have completed this form at a time when he thought he could obtain an extension from the respondent so as not to be moving into the property at this time.
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.

The Use by Mr Conduit of the Property as his address on Formal Documents

The respondent referred me to the fact that a Mr Conduit also nominated the property as his place of abode in RMS and AEC documents.
The applicant drew attention to the inconsistency in the respondent's position that whilst on the one hand he asserts that the photographs taken by the respondent's officers show that the property was uninhabitable as at February 2014, on the other hand he contends that perhaps Mr Conduit might be living in the property at this time, as revealed by his RMS and AEC documents. I accept that this is an inconsistency in the respondent's case on this issue.
More fundamentally however, the nomination by Mr Conduit of the property on his electoral roll or RMS documents as being his residential address can be given very little weight as being evidence that he actually resided there. The respondent did not seek to call evidence from Mr Conduit or anyone else as to where Mr Conduit was living at the time and did not cross-examine the applicant to the effect that Mr Conduit continued to reside in the property. Indeed it is not suggested by the respondent that any direct enquiries were made of Mr Conduit as to his residing in the property.
In the circumstances I disregard the evidence regarding Mr Conduit as it does not provide any relevant evidence as to the quality and extent of the occupation of the property by the applicant.

Lack of Alternative Principal Place of Residence

The applicant submitted that it is relevant that he was not residing at any other place at the time, in contra distinction to the facts in Ferrington. He submitted that there is no doubt that he was residing in the property and no other place, but that it is only a question of whether he resided there in a way that gave it a character or permanence such as to satisfy the residence test.
The applicant accepted that the fact that the evidence does not disclose an alternative residence does not make the property his principal place of residence by default. However, he submitted that in the context where the only principal place of residence could have been his parent's house or the property, the property was his only place of residence.
I accept the applicant's submission and accept that his lack of an alternative residence is somewhat relevant. However, I have also taken into account that I must look at the nature of the occupation of the property itself. I accept that in theory it is possible that a person can have no principal place of residence for the purpose of deciding eligibility in this case.

Use of the Property to Socialise

The respondent relied on the fact that the applicant rarely used the property to socialise.
The applicant accepted this but submitted that whilst he very rarely socialised at the property, even when he was residing at his parent's home, he rarely had friends to visit, for example only on his birthday.
I take into account the fact that the applicant rarely used the property to socialise. This would be compelling evidence against the property being his principal place of residence, if he was in fact using other property to undertake his social life and to entertain his friends. However, in this case, I find that the applicant worked and studied for extremely long hours and rarely socialised at all. I also take into account that the applicant was using the property in his limited spare time to renovate the property and that it was likely that he could not have entertained in the property at that time. In all of the circumstances I think that little can be made either way about the fact that the applicant did not use the property to socialise.

Use of the Kitchen and Bathroom in the Property

The respondent pointed out that the property did not have a functioning bathroom or kitchen and had no hot water. He submitted that this is intimately tied to a residence and that the applicant did not use these facilities.
The applicant accepted that he did not use the bathroom in the property during the relevant period as it was being renovated. He submitted, and I accept, that the problems he encountered in the bathroom were a major defect in the property, which he hadn't realized existed when he purchased the property. Accordingly he was required, so as to make the bathroom usable, to renovate and re-waterproof the bathroom. He submitted that the tiling works were also defective and the situation became more complicated. Accordingly, by the time he moved in the bathroom was still not usable and it was not fixed until 2014 despite his sincere efforts to have it ready in time to move into the property. He submitted that this fact was not hidden from the respondent when he sought an extension. He submitted that had the bathroom been completed, he would have used it.
I accept that it is ordinarily a hallmark of the use of a residence that the inhabitants use the bathroom. However, I also accept that in the ordinary course of the use of any residence as a principal place of residence, from time to time the occupants may need to regularly use bathroom facilities elsewhere, say at their place of work or at a gym or at a neighbour's house, particularly in circumstances where they are undertaking renovations.
The respondent submitted that a further relevant matter was the fact that the applicant did not sufficiently use his kitchen, for the property to be his principal place of residence. He submitted that the applicant had no need for a kitchen; he usually bought breakfast every morning; as he was regularly at university, often returning to the office following; he ate late night cheap food which was readily available, eating out every night; and he took some takeaway food home occasionally but generally ate out. Accordingly it is submitted that he did not use the residence as a place to eat.
The applicant submitted and I accept that it was his habit to eat at his place of employment, but not to the exclusion of eating at the property. He submitted that he generally ate takeaway food, which he consumed at the property.
I have taken into account the fact that the applicant's use of the property for meal preparation and eating was minimal. But the question must be considered in light of the applicant's lifestyle as a whole. A single, busy professional person who is also studying, such as the applicant, can be expected to eat out and have his meals prepared by another. His eating habits were completely consistent with his lifestyle whilst living with his parents, when he ate food cooked by his mother, when he was at home, from time to time.

Use of the Bedroom and the Applicant's Sleeping Arrangements

The respondent submitted that the applicant slept on the floor for about two months, before his parents gave him a mattress. He says that the applicant primarily used the property for sleeping. The respondent submitted that the applicant's life revolved around work, and that he worked long hours therefore only used the property to sleep, and as such any use beyond sleeping was quite limited. He reminded me that the applicant's evidence was that he woke at about 5.30 or 6 am and came home late. The respondent submitted that on a daily basis, the applicant was only in the property for a short period of time. It follows from these submissions, that it was being asserted that the applicant had no principal place of residence despite this being the only place that he resided.
The applicant submitted, and I accept, that whilst he did not sleep at the property every single night, his absences from the property during the period were at the most 20 nights. He also submitted and I accept, that he had a younger brother who he needed to be cared for from time to time. I find that this kind of absence is most usual for anyone who is otherwise occupying a residence as his or her principal place of residence. I do not understand the respondent to argue otherwise.
I find that the applicant's time at the property was limited, in line with his lifestyle and that it was similarly limited when he was living with his parents. In short his habits changed very little upon moving into the property so far as his time at home was concerned. I find that when he wasn't working or studying, he was mostly at the property undertaking renovation activities in order to reside there in comfort. I accept that it is a factor to consider that he spent little time at the residence. However I also accept that the objective characteristics of residence must, to some extent at least, take into account the lifestyle habits of the particular resident.

Electricity Usage at the Property

The respondent submitted that the applicant's electricity usage at the property during the relevant period was significantly lower than one would expect and that the applicant admitted that he spent little time at the property. The respondent also submitted that the applicant's evidence about his living in the property is not consistent with the pattern of electricity usage. He further submitted that the extremely low usage between 18 March and 24 April 2013 casts doubt as to whether the applicant occupied the property during this time and that it is an indication as to quality of the use of the property. As to the penultimate point however, I note that the applicant was not cross-examined to the effect that he was not occupying the property during 18 March to 24 April 2013 and as such it is difficult to accept that submission in those terms. However, I note that the applicant accepted that his electricity use was quite low.
The applicant submitted however, that the respondent's comparison is misleading, as the increase or decrease in electricity use does not directly correlate with a use of property but rather it correlates only with the need to use electrical appliances (including heating and cooling which changed in accordance with the weather as well as with occupation).
Further, the applicant submitted that the billing details during the period say little about the quality of his occupation of the property during the period. First, he submitted that the evidence established that in March and April of 2013, it was likely to be neither particularly hot nor cold and as such he was unlikely to be using the heater or the airconditioning as the property was of double brick construction. Second, he submitted that the usage amounts are simply averages and say little about the quality of the occupation.
I accept that the electricity usage is some indication of the lack of time spent at the property by the applicant (in line with his stated lifestyle). I also accept that it is some indication of the "quality" of that occupation, that is that he had little need to use electricity whilst there. However, I am of the view that there is a limit to which electricity use is compelling evidence of the applicant's quality of occupation given his evidence about the bathroom renovation in particular and his evidence about his normal life style.
Further, I find that whilst there was low electricity usage at the property during the relevant period, there is no evidence to compared that usage to, say, other occupants of the apartments in which the property was located who it might be said were occupying their homes to the appropriate degree. Accordingly, there is a limit to which I can make any finding as to what one would expect the electricity usage to be. I do however find that it was low.
I accept that the level of electricity usage is relevant evidence in assessing the level of occupation of the property and also the character of that occupation. Generally speaking the lower the electricity usage, the less likely it is that the occupant is present in the property and the less likely it is that he or she is actively using the property, such as cooking, showering, washing clothes, heating or cooling the property. The question then becomes whether or not those matters are significant in light of the occupant's ordinary lifestyle. Often electricity readings are used to challenge an assertion by an applicant for a grant that he was at all times living in the property. That is not this case. It has not been suggested by the respondent that the applicant did not occupy the property (other than for the period referred to above which I have dealt with), but rather it is asserted that he was rarely physically present and when he was, he used the property only to a limited degree.
There is no question in this case, that the applicant spent much of his waking moments outside of the property. He worked and studied for long hours. Furthermore, in his spare time he was renovating the property, which meant that the bathroom in particular could not be used, thus reducing the use of electricity. Furthermore, because of the renovations, the hot water was not yet connected, further minimising further the level of electricity use at the property.
In circumstances where the applicant admitted that he spent very little time at the property (as he was working and attending university), the low levels of electricity use do little to rebut his account of residing in the property and indeed I don't understand there to be a genuine challenge to his account of his occupation of the property and his lifestyle habits. He submitted that his lifestyle was such that he had little use of electrical appliances.

Decision

Ultimately the question for determination is one whether, in circumstances where the applicant spent little time at the property, other than to sleep and to renovate the property, whether he has established that the property was used by him as his principal place of residence as is understood by the residential requirements.
The applicant worked and studied for long hours each day, general eating his meals at his workplace or by obtaining takeaway food to consume at the property. Due to the renovation of the property, he did not use the bathroom or kitchen to any great degree and essentially he used the property to sleep. Whilst he did little socialising at the property, this must be seen in the context where he worked and studied long hours, and where he did little entertaining of any kind either when he lived with his parents, or during the relevant time. When he moved into the property, the applicant took with him to the property from his family home all of his personal items that he needed to live, and other than for brief periods, he resided only at the property during the relevant period. Whilst he did not use the address of the property as his address for formal documents, he explained why this was so given the lack of security in the mailbox and his lack of regard for the importance of his nominated address on AEC documents. Further he nominated the property as his residential address on employment records and on his RMS records, so that this would be the place where he might be located in an emergency. His subjective intention was to reside in the property and he had no desire to continue living with his parents. He renovated the property to his personal taste and relevantly did not let the property to others. Whilst he obtained a small amount of rent at the beginning of the period, he took all reasonable steps to remove the existing tenants.
Ultimately the question as to whether or not the applicant resided in the property as his principal place of residence (to be determined objectively, but having regard to the lifestyle of the applicant and his subjective intention in residing in the property) is a question of degree. In all the circumstances, I find that the applicant has established that he did reside in the property during the relevant period as his principal place of residence.
Having regard to the above findings on the material before me, the correct and preferable decision is to make the orders below.

Orders

I make the following orders 1. The decision of the Chief Commissioner of State Revenue dated 26 February 2014 requiring repayment of the grant and any penalty is set aside. 2. The decision of the Chief Commissioner of State Revenue, disallowing the applicant's objection, is set aside. 3. The decisions of the Chief Commissioner to reverse the decision to pay the grant and to reassess the stamp duty exemption or concession are also set aside. 4. Any relevant Notices of Assessment, including the assessment issued on 26 February 2014 and any penalty assessments, are set aside. 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

Amendments 17 November 2015 - Case title corrected 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: 17 November 2015

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Judgment (31 paragraphs)

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