Gao v Commissioner of State Revenue (Review and Regulation) [2020] VCAT 577

1. Under section 33(1) of the First Home Owner Grant Act 2000 (Vic) and section 51(2)(c) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the decision made by the respondent on 12 October 2018 (notice no. 22831720) to reverse the first home owner grant paid to the applicant, is set aside.
2. Under section 33(1) of the First Home Owner Grant Act 2000 (Vic) and section 51(2)(c) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the decision made by the respondent on 12 October 2018 (notice no. 22831788) to impose a penalty on the applicant, is set aside.
3. Under section 111(1) of the Taxation Administration Act 1997 (Vic), the additional duty and penalty imposed under the notice of assessment issued on 12 October 2018 (no. 17813050) is varied to nil.

1. Mr Ming Gao acquired a property located in Montpellier Crescent, Craigieburn in June 2014 (Relevant Property), in respect of which he claimed the 'PPR transfer' concession and reduction (duty benefits) under the Duties Act 2000 (Vic) (Duties Act), as well as the first home owner grant (grant) under the First Home Owner Grant Act 2000 (Vic) (FHOG Act).
2. In March 2015, after a house was constructed on the Relevant Property and certain defects were remedied, Mr Gao moved into the property for around four weeks, before moving to Sydney to take up a new job. He kept his personal effects in the property, which he visited on a number of occasions between April 2015 and June 2016. Mr Gao then rented out the property in late June 2016.
3. A condition for the payment of the grant, and the provision of the duty benefits, is that Mr Gao occupied the Relevant Property as his principal place of residence for a continuous period of 12 months commencing within 12 months of the acquisition (in the case of the duty benefits) or completion of construction (in the case of the grant) (individually and collectively referred to as the Residence Requirement).
4. In October 2018, the Commissioner of State Revenue (Commissioner):
   • (a) reassessed the duty on the acquisition of the Relevant Property without the duty benefits, resulting in additional duty of $4,748 becoming payable by Mr Gao; and
   • (b) decided to reverse the grant, resulting in $10,000 becoming repayable by Mr Gao,

on the basis that Mr Gao failed to satisfy the Residence Requirement. In both cases, penalties were also imposed, being $1,187 (at the rate of 25%) in the case of the duty assessment and $1,000 (at the rate of 10%) in relation to the reversal of the grant.

1. The only issue in dispute in the proceeding is whether Mr Gao has satisfied the Residence Requirement having regard to all the facts and circumstances. The objections did not include, and Mr Gao confirmed that he did not seek to raise, a separate ground for review regarding the penalties or requesting the Tribunal to exercise any discretion the Commissioner has to reduce the period for which the Residence Requirement must be satisfied.
2. The hearing was held by video conference.[1] Mr Gao gave evidence and was cross-examined. After listening to that evidence and hearing submissions from Mr Gao and Mr Morgan (who appeared on behalf of the Commissioner), I reserved my decision.
3. I note that, on 11 May 2020, Mr Gao sent an email to me in relation to his hearing. As explained to him in a letter sent by the principal registrar on 12 May 2020, it is not appropriate for a party to attempt to contact the presiding member personally, or to seek to provide further evidence or make further submissions after a hearing has been completed without leave to do so. I have not read the correspondence from Mr Gao, and have deleted it from my email records.
4. For the reasons set out below, I have determined that Mr Gao satisfied the Residence Requirement and, as such, the additional duty and associated penalty should be varied to nil, and the decision to reverse the grant and impose a penalty set aside.

Outline of relevant aspects of Duties Act and FHOG Act

1. The purpose of the FHOG Act is to 'encourage and assist home ownership ... by establishing a scheme for the payment of grants to first home owners'.[2]
2. A grant is payable to an applicant if the person complies with the eligibility criteria at the time that the transaction for which the grant is sought is completed.[3]
3. There are five eligibility criteria which applicants must satisfy including, of relevance to the present case, a requirement to occupy the home to which the application relates as the applicant's principal place of residence for a continuous period of at least 12 months, which must commence within the 12 month period immediately after the building of the home is completed.[4]
4. As the purpose of the grant is to assist with home ownership, it is generally the case that the grant is applied for and paid in advance of satisfaction of the Residence Requirement. The Commissioner has power to authorise this, provided he is satisfied that the person making the application intends to occupy the home as his or her principal place of residence for the requisite period.[5] However, if the grant is paid in such circumstances, and the Residence Requirement is not ultimately satisfied, the grant must be repaid within 14 days of the end of the period allowed for compliance.[6]
5. The Commissioner may later decide to reverse the decision if it was incorrect[7] and, if he does so:
   • (a) must give notice of that decision to the applicant;[8]
   • (b) may (by written notice) require repayment of the grant;[9] and
   • (c) may (by written notice) impose a penalty where the applicant fails to make a repayment required by the conditions of the grant.[10]
6. Duty is ordinarily payable by a transferee in respect of a transfer of land at rates from 1.4% to 6%, depending on the dutiable value of that land.[11] However, those rates do not apply where 'other provision is made'.[12]
7. Section 57J of the Duties Act sets out a different rate of duty on a 'PPR transfer', being a transfer to a natural person who intends to occupy the land as his or her principal place of residence.[13] Relevantly, the ad valorem rate of duty that applies to land worth between $130,000 to $440,000 is 5% (rather than 6%, which ordinarily applies). In this sense, it is a duty concession.
8. Section 57JA of the Duties Act provides a further benefit, by way of reduction of duty in respect of a PPR transfer provided a grant is paid or payable in respect of the land under the FHOG Act.[14] At the relevant time, the reduction was 40% of the duty otherwise payable.
9. Both the concessional rate of duty under section 57J, and the reduction of duty under section 57JA, are subject to a requirement that the transferee occupies the land as the transferee's principal place of residence for a continuous period of at least 12 months, which must commence within the 12 month period immediately after the transferee became entitled to possession of the land.[15]
10. The Commissioner is entitled to reassess duty on a PPR transfer where the Residence Requirement is not satisfied, to charge duty at the normal rate and without the benefit of any reduction.[16]
11. The reassessment gives rise to a 'tax default' if the duty is not paid within 30 days after the failure of the Residence Requirement,[17] resulting in a penalty (ordinarily at the rate of 25%) under section 30 of the Taxation Administration Act 1997 (Vic) (TA Act).
12. Both the FHOG Act and the TA Act provide for a person to request the referral of the matter for review by the Tribunal if their objection to a reversal decision or duty reassessment are not allowed.[18]
13. On review, the applicant bears the onus of proof.[19] The standard of proof is the balance of probabilities.[20]

1. At the heart of the Residence Requirement is the need to establish that a particular property has become - and is maintained as - the 'principal place of residence' of the person concerned for at least 12 months.
2. Despite its critical importance, the phrase 'principal place of residence' is not defined as such in either the Duties Act or FHOG Act.
3. In Ferrington v Chief Commissioner of State Revenue (Ferrington),[21] the Appeals Panel of the New South Wales Administrative Decisions Tribunal drew together a number of principles from the cases considering that phrase in the following passage (Ferrington Principles):[22]

First, the words "principal place of residence" should be given their ordinary meaning in the context in which they appear ...

Secondly, consideration of whether a person has been residing or occupying premises as their principal place of residence is to be assessed objectively, in the light of the circumstances relating to the actual occupation of the dwelling ...

Thirdly, the intention of the person concerned, gauged objectively, is relevant but not determinative of the issue ...

Fourthly, to occupy a home as his or her principal place of residence a person's occupation must have a degree of permanence to it: a connection to a place of residence of a transient, temporary, contingent or passing nature is not sufficient, nor is occupation for some other purpose ...

Fifthly, the short length of a person's residence, while relevant, is not determinative of the issue ... This is so since a recipient's occupation of a home, while short, may have the requisite degree of permanence to it. But that will not happen if, when considered objectively, the occupation was transient, temporary, contingent or of a passing nature, or for some other purpose. One may occupy premises for a short time on a transient, temporary, or contingent basis, but one can also occupy for a short time as one's principal place of residence. It is the nature of that occupation which provides the element of permanence. The fact that a period of actual occupation is short, as in the present case, will in practice make it harder for a recipient to show that the occupation was as his or her principal place of residence, but it will not make it impossible ....

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.

1. The Ferrington Principles are regularly applied in cases concerning the first home owner grant,[23] and in the context of other legislation using the same term.[24] It was not debated, and to my mind clearly correct, that the Ferrington Principles are relevant when considering the Residence Requirement in the context of duty benefits under sections 57 and 57JA of the Duties Act.
2. It is relevant to observe, at this juncture, that the facts in Ferrington bear some similarities to the applicant's circumstances. In that case, the applicant only occupied her property for a period of three weeks (from 5 June to 28 June 2001), after which she rented it out. Nevertheless, the Tribunal member at first instance held that the property was Ms Ferrington's principal place of residence, with the appeal by the New South Wales Chief Commissioner of State Revenue being dismissed. It is worth setting out the Appeal Panel's consideration in this regard:[25]

In the decision under appeal, the tribunal found that the respondent occupied the home as her principal place of residence. The tribunal accepted her evidence that it was her intention to live in the home as her principal place of residence and found that she took significant steps which were confirmatory of that intention: occupying the premise, connecting and using services. In reaching that conclusion, the tribunal considered evidence of the circumstances leading up to, during and subsequent to the period of occupation. It ascertained both the respondent's intention and the nature of her occupation objectively, in the light of that evidence. In doing so the tribunal noted, as did the AAT in Gaines, that the respondent's evidence of her intention was not disputed. Implicitly, the Tribunal found that the respondent's occupation was not transient or contingent or for some other purpose. The tribunal accepted the respondent's reasons for moving out of the home, but did not determine whether they should be considered "outside her control". Unlike the tribunal in Bates, the tribunal did not find that during her short period of occupation of the premises the respondent had another "home" or "principal place of residence", either at her parents' home or anywhere else.

In reaching its decision the tribunal did not mis-state the law. The conclusions reached by the tribunal are not at odds with its findings of fact. While the tribunal's reasons may be open to criticism for failing to articulate all the considerations that were relevant to its conclusion, a reading of these reasons as a whole demonstrates that it had regard to all the relevant evidence before it. There is no error apparent in the tribunal's application of the law to its findings, or in the tribunal's decision.

1. It should be observed that, at the time of the decision in Ferrington, the New South Wales first home owner grant scheme did not set out any minimum period of occupation for the grant; rather, it was sufficient if 'the occupation [was] as the recipient of the grant's principal place of residence'.[26]
2. The Appeal Panel in Ferrington held that, to occupy a property, 'it is necessary that a recipient of a grant have legal ownership of the premises'.[27] In concluding that Ms Ferrington occupied the home in the 'commonly accepted sense of the word', the Appeal Panel observed that prior to renting it out, 'she was the person with the immediate supervision and control of the premises and the power of permitting the entry of other persons'.[28]

Mr Gao's acquisition and use of the Relevant Property

1. The following outline of the circumstances surrounding Mr Gao's acquisition and use of the Relevant Property is based on his evidence, which was largely unchallenged, except where otherwise indicated.
2. Mr Gao is an engineer by training, with experience as a mainframe developer. He was born, raised, educated and commenced his career in China, before moving to Melbourne in June 2012.[29]
3. At first, Mr Gao found it hard to find a suitable job due to the combination of:
   • his specialised skills, ie. there are a limited number of organisations that use mainframe computers, mainly banks and government departments;
   • not being an Australian citizen, which means that he cannot work for some government departments that use such computers; and
   • English being his second language, placing him at a disadvantage compared to local candidates with similar skills.
4. After working in a number of non-professional positions (eg. as a courier driver), he was fortunate to find a position with Court Services Victoria (CSV) and took up a contract role as a Senior Analyst Programmer in 2013.[30]
5. Mr Gao says he had a dream of owning his own home and, on 10 December 2013,[31] entered a contract to acquire the Relevant Property from Stockland Highlands Pty Ltd, which settled on 11 June 2014.[32] He obtained the duty benefits at settlement.
6. On 10 July 2014, Mr Gao entered into a building contract with Henley Arch Pty Ltd for the construction of a four-bedroom house on the Relevant Property.[33] Mr Gao applied for the first home owner grant on 28 July 2014,[34] which was paid on 18 September 2014.[35]
7. Around the same time, in late July 2014, Mr Gao entered a further 6-month contract with CSV for the period from August 2014 to January 2015.[36]
8. Construction of the house was completed, and a certificate of occupancy issued, on 18 December 2014.[37] However, Mr Gao had identified a number of major defects with the building[38] and refused to take the keys until they were remedied.
9. In the last quarter of 2014, CSV was going through a restructure and Mr Gao's position at the end of his contract term was becoming uncertain.[39] As a result, he began to look for alternative employment and, sometime in early to mid-March 2015, received a verbal offer from the Commonwealth Bank of Australia (CBA) to take up a role as Senior Software Engineer in Sydney.
10. On 17 March 2015, Mr Gao sent an email to the State Revenue Office (SRO), which stated:[40]

I had received FHOG last year, I have a new house just built up and it will be settled this Friday. ...

For work reasons, I have to relocate to Sydney next month (13/04/2015) and I have noticed that I could not be able to satisfy the residency requirement, because I am thinking rent the new house out via the agent.

So I am writing to ask for less period for that requirement ...[41]

If possible, could you please take my exceptional circumstances into consideration? To be honest, I am reluctant to rent out the house because it is brand new and I have paid a lot of money and energy and time on it, but I have not choice due to the higher living cost in Sydney. Another reason is that I have been paying the mortgage since last May, it is more than $2,000 per month currently, if I leave it empty and rent another one in Sydney, it will be a real stress on my shoulders.

1. On 21 March 2015, Mr Gao moved into the Relevant Property.[42]
2. Shortly afterwards, on 26 March 2015, Mr Gao received the formal offer letter in relation to the CBA position,[43] which he accepted.
3. On 25 April 2015,[44] Mr Gao relocated to Sydney to take up the position with CBA. Initially he stayed with Mr Jerry Zheng in his home in Whalan.[45]
4. Between April 2015 and June 2016, Mr Gao:
   • (a) Stayed in four different premises, with friends, on short term letting arrangements.[46]
   • (b) Returned to Melbourne on at least seven occasions (as discussed further below).
   • (c) Looked for jobs in Melbourne, including being interviewed for positions at CSV in November 2015 and January 2016.[47]
   • (d) Approached an agent to list the Relevant Property for rental in around late April 2016.[48]
5. On 26 June 2016, Mr Gao moved his personal effects to Sydney. The total amount moved was 12 cubic meters and included two beds, a lounge suite, a TV stand, a medium sized fridge, six dining chairs and a buffet, a washing machine and a Kawasaki Ninja 300 motorcycle.[49]
6. On 30 June 2016, tenants entered into possession of the Relevant Property.[50]
7. In his objection, Mr Gao claimed that he 'worked in Sydney 3 days a week, and came back working form (sic) home for 2 days and spent weekends here as well'.[51] In cross-examination, he said that he spent 'most weekends' in Melbourne and denied that he was being misleading in the objection, explaining that English is his second language.
8. The evidence from credit card transaction and flight records which Mr Gao has filed indicates that, between April 2015 and June 2016, he returned to Melbourne on seven occasions as follows:
   • 4 to 9 June 2015 (six days);[52]
   • 30 July to 4 August 2015 (six days);[53]
   • 4 to 7 October 2015 (four days);[54]
   • 22 December 2015 to 3 January 2016 (13 days);[55]
   • 14 to 17 January 2016 (four days);[56]
   • 22 to 24 April 2016 (three days);[57]
   • 25-26 June 2016 (two days).[58]
9. At least two of these trips to Melbourne are also corroborated by the evidence of witnesses, who say they visited Mr Gao at the Relevant Property.[59]
10. Mr Gao seeks to explain the lack of other evidence on the Tribunal's procedural orders which limited him to the evidence he could locate and produce by 2 September 2019.[60] He suggests that, on other trips, he drove to Melbourne and used cash or a debit card to avoid credit card charges, but did not produce the bank account statements because he wished to maintain his privacy.
11. While Mr Gao's evidence was largely credible, I do not accept his evidence on this point having regard to the pattern of expenditure established in the credit card transaction records, as well as the evidence of low utility usage over the entire 15-month period[61] which is inconsistent with him spending half a week in Melbourne for 'most weeks' over the period from April 2015 to June 2016.
12. I also note that the procedural orders of the Tribunal are not absolute, rather they limit the production of new evidence, except with leave. Mr Gao did not seek such leave at any time after receiving the Commissioner's Statement of Legal Contentions which put him on notice of the contention that he only visited Melbourne on the occasions listed above.[62]
13. As such, I can only be satisfied that Mr Gao spent a total of 38 days in Melbourne over the period from April 2015 to June 2016.
14. As previously noted, Mr Gao has not returned to Melbourne and the Relevant Property has continued to be rented out. In this regard, Mr Gao says he settled in Sydney on a permanent basis after meeting his now wife in mid-2016, marrying in June 2017 and having their first baby in January 2018.[63]

1. Mr Morgan says that, based on the evidence, Mr Gao only lived in Melbourne from mid-2012 to mid-2015 and did not have 'great connections' with the city. By contrast, he 'settled in quickly' in Sydney, making friends and meeting a girl whom he married.
2. In terms of his intentions, Mr Morgan says that the correspondence with the SRO on 17 April 2015 indicates Mr Gao made a conscious 'trade off' in taking the job with CBA in Sydney, which meant that he could not occupy the Relevant Property as his principal place of residence for the requisite period. He says Mr Gao is incorrect to suggest that he 'had no choice'.
3. Based on this, Mr Morgan says it is open to the Tribunal to find that the applicant 'determined early on that he would not return to Melbourne' and 'from the time that he moved in [to the Relevant Property], the applicant knew he was unlikely to stay there long' because he had already received a verbal offer from CBA which he intended to accept. As such, the Relevant Property was merely a 'place to put things that he owned'.
4. Mr Morgan says that from April 2015 to July 2016, the Relevant Property was largely unoccupied. Further, by May 2016, Mr Gao had 'decided to rent out the place' in the belief that he had already satisfied the Residence Requirement.
5. On behalf of the Commissioner, it is submitted that 'at highest, the applicant occupied the property [in Montpellier Crescent] as his principal place of residence for three weeks in March to April 2015'.
6. However, it is suggested that even this period of occupation should be regarded as 'impermanent and transient' given that Mr Gao already decided to leave and his 'intention was always to rent out the property as soon as he could'. In this sense, any occupation should be regarded as being a 'ritual' to satisfy the Residence Requirement.[64]

1. Mr Gao says that, contrary to the Commissioner's submissions, he found it hard and a struggle to live in Sydney, noting that his laptop was stolen on the first night he stayed in that city. He says that he was trying to find a job in Melbourne so that he could come back, pointing to the two CSV interviews.
2. Mr Gao also rejects that he exercised a choice in moving to Sydney. He says there were no other suitable jobs available to him in Melbourne at the time. As such, it was the 'best choice at that moment' but, if he could have found a job in Melbourne, he would have stayed.
3. In terms of his intentions at the time of moving into the Relevant Property on 21 March 2015, Mr Gao says notwithstanding the email 'seeking help' from the SRO, he had yet to accept the CBA position and had not made a final decision pending receipt of the formal written offer of employment (which did not happen until 26 March 2015).
4. Mr Gao contends that he had a 'strong connection' to the Relevant Property, having been 'engaged in every step of the building process' from July 2014 to March 2015 and points to the fact that he 'came back frequently to live in [his] home as [his] principal place of residence'.
5. Lastly, Mr Gao says he was 'honest' with the Commissioner 'from day one' and is 'very stressed' that it is now 'being used against [him]'.

1. The factual background to this proceeding is somewhat different to most cases concerning a person's principal place of residence.
2. In the ordinary case, the applicant claims to be living in their property, despite an abundance of objective evidence pointing to them spending most, if not all, of their time elsewhere (often with parents or other family members). To the extent that the applicant does stay in the property, eg. to sleep after working all day and eating with relatives, it can often be characterised as a 'ritual of occupancy' to do no more than meet the Residence Requirement.
3. In the present case, and having regard to my finding at [51], the evidence suggests that Mr Gao only physically occupied the Relevant Property for a total of 74 days in the 12-month period from 21 March 2014 to 20 March 2015 (being 36 days at the start of that period,[65] and 38 days on return visits to Melbourne).
4. However, it is apparent from the discussion of Ferrington at [28], that the notion of 'occupation' is used in its 'commonly accepted sense' based on legal ownership and possession. The Commissioner did not seek to contend otherwise.
5. In that regard, Mr Gao has been the owner of the Relevant Property since June 2014. Unlike the applicant in Ferrington, he did not part with possession until he rented it out from 30 June 2016.
6. The question is whether the nature of Mr Gao's occupation can be regarded as having a sufficiently permanent nature to characterise the Relevant Property as his principal place of residence, or should be seen to contingent, temporary or transient.
7. Of course, usually an immediate intention to leave a property - or even an intention to rent it out soon after satisfying the Residence Requirement - will be fatal to a claim that the property is a person's principal place of residence. As Judge Macnamara observed in D'Amelio:[66]

It is one thing to intend to occupy a premises as ones principal place of residence for an extended or indefinite period and to change ones mind or to be forced to by changed circumstances. It is another thing altogether to have an intention to connect oneself to the premises in some way for a period of six months and then irrevocably part with possession of them by putting in a tenant. The latter is the situation which in my view has been established here and not the former. No detail has been given as to the supervening financial embarrassment which has been referred to. Questions which I asked aimed at teasing that matter out received no effective answer. The best that one can say is that these applicants were conscious that they had to do something for six months and they did something for six months. Whatever it was it was in my view transient, contingent or of a passing nature.

1. The Commissioner suggests that Mr Gao's email to the SRO on 17 April 2015, prior to the commencement of his occupation, 'demonstrates that he was keen to rent out the property as soon as he had permission',[67] such that any actual time spent at the property was a 'ritual' to satisfy the Residence Requirement.
2. In my view, it is not appropriate to characterise Mr Gao's intentions in this manner.
3. First, I accept Mr Gao's evidence that it was not a 'choice' to move to Sydney. Rather, it was a matter of having to have a stable position that he could use to finance the ongoing costs of that property. It was a means to an end, being the preservation of the house in which he had invested his dreams, time and money. Noting that Ferrington establishes there is no 'requirement that the reasons for departure must be entirely outside of that person's control',[68] I consider Mr Gao's reasons as being 'both reasonable and adequately explained when considered in the light of [his] personal circumstances'.[69]
4. Second, although Mr Gao was very likely to take the CBA position and move to Sydney (albeit still dependent on a written offer) when he moved in, he had not abandoned the desire to return to Melbourne. This is evidenced by conversations he had over the period with Mr Capuano,[70] and corroborated by the two CSV interviews previously referred to (at [42(c)]). The objective evidence suggests that desire to return continued until at least January 2016.
5. Third, it is clear from the inventory of items moved in June 2016, that the house remained furnished and able to be lived in. Further, it was in fact used as a home on a fairly regular basis (every second month) over the period, including to invite others to visit that home. There is no evidence of other persons using the house. In my view, this takes it beyond a 'ritual of occupation'.
6. Fourth, Mr Gao did not have any permanent home in Sydney over the relevant period; rather, he moved from place to place. This is consistent with a desire to avoid long term commitments in Sydney when seeking to find a job and return to Melbourne. It is also consistent with the characterisation of the Relevant Property as the 'home' to which he would return.
7. Fifth, Mr Gao's explanation surrounding his decision in mid-2016 to make Sydney his home - that is, as a result of finding a partner who he would ultimately marry and start a family with - has a 'ring of truth' to it.
8. Taking all of these matters together, I find (on the balance of probabilities) that Mr Gao's occupation of the Relevant Property was not 'transient, temporary, contingent or of a passing nature', rather he intended to and did occupy the Relevant Property as his principal place of residence when he moved in on 21 March 2015, and did not cease to so occupy the Relevant Property until at least late April 2016 when as a result of changed circumstances he engaged a real estate agent to start advertising it for rent and made plans to move his personal effects to Sydney.

[1] Due to VCAT premises being closed to the public during the Victorian state of emergency associated with Covid-19.

[11] Duties Act, ss 7, 12 and 28.

[12] Duties Act, s 28(2).

[13] The latter aspect is set out in Duties Act, s 57I.

[14] The latter requirement is set out in Duties Act, 57JB.

[15] Duties Act, s 57K.

[16] Duties Act, s 57M(1).

[17] Duties Act, ss 16 and 57M(2).

[20] Sprod v Commissioner of State Revenue [2017] VCAT 621 [10] (for grants) and Nikoiee v Commissioner of State Revenue [2018] VCAT 1425 [12] (for duty).

[21] [2005] NSWADTAP 41.

[22] Ibid [42] (references omitted and principles separated to assist with readability).

[23] See (for example) D'Amelio & Anor v Commissioner of State Revenue (D'Amelio) [2012] VCAT 265 [15]-[16].

[24] For example, Carvalho v Commissioner of State Revenue [2017] VCAT 1295 [12] and Ward v Commissioner of State Revenue [2016] VCAT 1307 in the context of the exemption of a person's principal place of residence from land tax.

[25] [2005] NSWADTAP 41 [46]-[47].

[29] Statement of Legal Contentions of the Applicant (ASLC) [2(a)].

[30] Witness statement of Alex Capuano dated 1 September 2019 (Capuano WS) [1].

[31] Notice of acquisition of an interest in land: Tab 51 of Common Documents Lodged with the Tribunal pursuant to clause 89(1) of Part 19 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (T Documents).

[32] Transfer of land: T Documents at tab 50.

[33] Building contract for Ming Gao: T Documents at tab 46.

[34] Application for First Home Owner Grant: T Documents at tab 44.

[35] FHOG Online printout: T Documents at tab 48. It appears that the grant was paid to the mortgagee, ANZ bank.

[36] Letter from CSV to Mr Gao dated 30 July 2014: ASLC, Evidence 11.

[37] Occupancy Permit: T Documents at tab 36.

[38] Standard Property Report from Melbourne House Check dated 3 February 2015: ASLC, Evidence 2.

[40] Email from Mr Gao to 'sro@sro.vic.gov.au': T Documents at tab 6.

[41] The Commissioner can approve a lesser period of occupation if there are good reasons why an applicant cannot comply with the Residence Requirement: FHOG Act, s 12(2).

[43] It appears this was provided as an attachment to an email that Mr Gao sent to the Commissioner on 20 April 2015 (T Documents at tab 8), but for some reason the attachment was missing from the T Documents.

[45] Witness statement of Jerry Zheng dated 20 August 2019 (Zheng WS) [3].

[47] ASLC, Evidence 12 and Evidence 14 (see also Capuano WS [6]-[7]).

[48] RP Data, Property Detail: T Documents at tab 52.

[49] Email correspondence with Extra Mile Movers and Inventory List: ASLC, Evidence 7 and 8.

[50] RTBA Online Bond Summary/Receipt: T Documents at tab 62.

[52] ASLC, Evidence 16 (flight booking).

[53] ASLC, Evidence 17 (flight booking) and evidence 19 (credit card transactions).

[54] ASLC Evidence 19 (credit card transactions).

[55] ASLC, Evidence 19 (credit card transactions).

[56] ASLC, Evidence 15 (flight booking) and Evidence 19 (credit card transactions).

[57] ASLC, Evidence 19 (credit card transactions).

[58] ASLC, Evidence 18 (CBA credit card statement).

[59] Mr Capuano on 1 August 2015 (Capuano WS [2]) and Mr Raymond Liang on 13 January 2016 (Witness Statement of Raymond Liang dated 15 August 2019 [5]).

[60] Order 4 of the Tribunal's orders dated 5 August 2019.

[62] Respondent's Statement of Legal Contentions dated 30 September 2019 (RSLC) [45].

[64] An expression which appears be drawn from Kyriakou v Commissioner of State Revenue [2011] VCAT 640 [37].

[66] [2012] VCAT 265 [15].

[70] Capuano WS [5] 'From mid 2015 to early 2016, Ming talked to me many times saying he wanted to come back to Melbourne if there is any job vacancies at CSV'.