2 He applied for and was granted a First Home Owner Grant. Subsequently that grant was recalled and the decision to recall is the subject of this application to review.

3 Mr Calia is a musician and some time in the year 2000 he decided to purchase a residence in which he could live, and from which he could conduct his work as a musician, composing, recording and preparing for performance work. He had some savings and had won a financially rewarding competition. He was no longer living with his parents although he maintained a studio at their East Brighton residence and worked from there.

4 Eventually a suitable place was located. It was of sound brick construction, was on a corner, was freestanding and was capable of appropriate renovation for the installation of a soundproofed and suitably fitted-out studio.

5 Just prior to that he had been successful in obtaining a role in the musical "Buddy" and it was on the strength of that role that he was able to approach the bank for a loan on the residence. His father accompanied him and he told the Tribunal that his father and his family were well known to the bank manager and in his opinion, the bank manager understood that if the applicant found himself in any financial difficulty, the family would be entirely supportive. It is presumably for that reason (and because the applicant had a substantial deposit) that no guarantees were sought by the bank.

6 At the time the applicant knew that the show would probably tour although it was not clear that he would be chosen to tour because often the promoters preferred to hire in the state of performance. He told the Tribunal the company was not very organized and he did not feel that his engagement was "rock solid". But he conceded there was a "good chance" he would be asked to tour. And in fact that is what occurred.

7 On the date of settlement (or the day after) the applicant moved into the residence complete with a bed, some musical instruments, an esky and a washing machine. (The bulk of his musical equipment remained at his parents' East Brighton home.) His girlfriend returned from overseas and joined him in the house. In late December his position as a member of the interstate touring show was confirmed and he quickly arranged for tenants to rent the premises. They had been "word of mouth" referrals and they wanted to move in on 1 January 2001. In order to accommodate them, the applicant moved back to his parents place for three weeks before commencing the interstate tour. His girlfriend accompanied him on tour and found modelling work from time to time.

8 As events transpired, the applicant and his girlfriend were not able to move back into the house until January 2003.

9 It is not necessary for me to catalogue all of the applicant's movements in the intervening time nor the events that modified those, but his work took him interstate and overseas . Between March 2002 and January 2003 he returned to Melbourne where he found it necessary to live with his parents as the tenants were still in the property and he had little work.

10 The first tour ended in August 2001 and some time after that he phoned the respondent's office because he had an offer of more interstate work which, if accepted, would potentially take him past the twelve month mark. He was mindful of the residential requirement of the legislation. He explained to a staff member of the respondent that he had only lived in the residence for three weeks but was assured that there was no minimum period and there was nothing he need do. On the strength of that he took up a position in Brisbane. The lease arrangements with the tenants were extended and following the short Brisbane engagement he went on a second tour of duty with "Buddy".

11 He and his wife reside in the subject property and have done so since January 2003.

12 Section 12 of the First Home Owner Grant Act 2000 (as it then was) provided as follows:

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

It is not in dispute that the purchase of the Tranmere Street property was an "eligible transaction".

13 In Gregoriou v Chief Commissioner of State Revenue [2003] NSWADT 145 Judicial Member Higgins set aside the Commissioner's decision that Mr Gregoriou repay his grant. He had not been able to take up residence in the property during the twelve month period for reasons totally beyond his control. The learned member took into account the circumstances of the applicant's original intent, the circumstances of his inability to occupy the premises, the purpose of the legislation and the fact that once he was able to, he took up residence in the property and continued to reside there.

14 Bates v Chief Commission of State Revenue [2004] NSWADT 13 was a similar case where it was found that the applicant had only resided in the subject property for two months and then for a variety of reasons returned to her parents' home for some considerable time before eventually settling in the property outside the twelve month period. Judicial Member Higgins set out the some guiding principles at para 39, viz-

The terms "occupy" and "principal place of residence" should be given their ordinary meaning having regard to the objects and purposes of the Act. That purpose being similar to [the abovementioned_] tax rating cases in that the legislative scheme of the Act is to provide first home owners some relief towards the cost of purchasing their first home. Accordingly, in the context of this Act, in my opinion, "occupy" means to reside in the property. However, that residence must also be such that it is the person's "principal" place of residence or to use the terms of the title of the legislation the person's "home". This in my opinion, requires the occupation_ to be ongoing and involves an element of permanence;

Whether an applicant has "occupied" the property as his/her "principal place of residence" as prescribed under the Act, is a question of fact that is to be assessed objectively having regard to all the circumstances. The intention of the applicant is relevant but it is not determinative of the issue. Nor is the fact that the applicant resided in the property for a short period of time during the relevant period. These matters, if established, must be considered in light of all the evidence including, where the applicant resided otherwise during the relevant period, the reasons given by the applicant for not residing or continuing to reside at the property, whether the reasons for not residing at the property were as a result of matters entirely out of the control of the applicant and the nature of the applicant's residence at the property. This list is by no means exhaustive as each case must be considered in the context of its own particular facts.

15 In Landrigan v Commissioner of State Revenue (unreported 4 February 2004) Senior Member Davis considered a case where the applicant, although intending to reside at the property in question, had in fact spent most nights at his girlfriend's place in circumstances where, for all intents and purposes, his girlfriend and her children appeared to be his family. Mr Davis concluded that whilst " at the time of constructing the property [he intended] to have the house as his principal place of residence, that intention never came to fruition."

16 Mr Davis had regard to a number of cases including Zakariya v Chief Commissioner Office of State Revenue [2003] NSWADT 26 (unreported) where Needham J stated that it did not appear to him "that the subjective intention of the applicant at the date of purchase brings him within the eligibility criteria. Sub-section 12(1) provides that the applicant `must occupy the home as the applicant's principal place of residence' within the twelve month period. Those words require an actual occupation, not merely an intention to occupy. Accordingly the applicant's stated intention does not bring him within the eligibility." Zakariya was a case where not only did the applicant not reside in the property, he sold it within the twelve month period. He had only slept at the residence on seven odd occasions during a three to four month period. Mr Davis concluded in Landrigan that the appropriate test was what would be the attitude of an outsider looking at all the relevant objective factors including the intention of the applicant and at that point one should ask whether the house was the applicant's principal place of residence.

17 I accept the evidence of the applicant and his girlfriend, now his wife. I accept that he occupied the house from the date of settlement to 31 December 2001 and that his girlfriend joined him there and lived with him there. I accept that both the applicant and his wife intended that this house would be their matrimonial home, that they would live and work there and that it was an essential part of their planning that as soon as practicable they would return to it.

18 I accept that it is the nature of the applicant's chosen career that decisions are often made at short notice, that mobility is required, that work is often in short supply and that opportunities must be grabbed when they appear. Further I accept that even though there was "a good chance" that the applicant would be asked to tour, this was little more than an optimistic possibility on the horizon. In no way was it a certainty or something to be relied upon. At all times the applicant's residence was part of his planning and in his mind was a place to revert to as soon as practicable.

19 In the circumstances of his and his wife's evidence, I think little turns on the matter of utility connections. The water, gas and electricity were connected even though, in relation to gas and electricity, those connections had not been arranged by him. I accept that this was the first house he had purchased and that he had no knowledge of whose responsibility it was to attend to these chores. I accept his evidence that he thought it had been attended to by his conveyancing solicitors although he now realises that this was not correct. He used a mobile telephone and his mail continued to be directed to a post office box at East Brighton which he had rented for some years. Similarly I am not persuaded that much turns on the failure to change his address on the electoral roll or that of his driver's licence. The applicant is very young and I intuited he was fairly naïve about such matters.

20 Using Mr Davis' test, what would an informed outsider make of the unique matrix of facts applicable here? Would an informed outsider take the view that, in the case of itinerant professionals who must travel to perform their art and earn their living, their matrimonial home is a crucial point of stability and although not inhabited on a permanent day-to-day basis, might it be said to constitute, in the absence of any other permanent abode, the principal place of residence? Add to the mix the period of actual occupation, the intention of the applicant, the uncertain nature of show business and the curious helter-skelter sequence of events. In these circumstances, I believe the answer of an informed outsider would be in the affirmative.

21 But to employ the analysis of Needham J and the other decision makers earlier referred to, one must consider all the surrounding circumstances. In this case, the applicant did reside in the premises albeit for a short time and it is true that there is no time limit expressed in the section. There is no doubt about his intention. That was in evidence from what he told the Tribunal, from what his wife told the Tribunal and from the confirmatory evidence given by his father and his solicitor.

22 A less naïve person than the applicant might have organized his affairs better and might not have taken at face value the advice he said he received from the respondent. But once again, his evidence about his enquiry to the respondent serves to reinforce his intentions and his desire to do the right thing in relation to the grant. That is, that although he had parted with the right to occupy the premises for a period, in his mind it had never ceased to be his principal place of residence. I accept his evidence that had he received contrary advice from the respondent, he would have turned down the Brisbane job, returned to Melbourne, given notice to the tenants and taken up residence again.

23 And although I accept the respondent's argument that this is not a case where estoppel might operate, the fact is the applicant made enquiries and proceeded on the basis of the responses he received. That by itself, like intention or length of occupation, is not determinative but is one of the matters to be considered.

24 Taking all these factors into consideration I have formed the view that the applicant has, in this unusual set of circumstances, met the residence criteria provided in the statute.

25 The decision of the respondent is set aside and the matter is remitted to the respondent for reconsideration in accordance with these reasons.