Glozier v Secretary, Department of Family & Community Services

Legislation 12 Section 1068-F1 of the Act provides for rental assistance if a number of cumulative criteria are satisfied. Relevantly for present purposes those criteria include: (a) the person is not an ineligible homeowner (b) the person pays, or is liable to pay, rent (other than Government rent) in respect of the period. 13 "Ineligible homeowner" is defined to mean a "homeowner" other than a person falling within certain exceptions, none of which are presently relevant: s 13(1). Section 11(4)(a) provides that for the purposes of the Act: "(a) a person …is a homeowner if: (i) the person has a right or interest in the person's principal home; and (ii) the person's right or interest in the home gives the person reasonable security of tenure in the home." Section 11(8) provides: "If a person has a right or interest in the person's principal home, the person is to be taken to have a right or interest that gives the person reasonable security of tenure in the home unless the Secretary is satisfied that the right or interest does not give the person reasonable security of tenure in the home."

The AAT's decision 14 The AAT's summary of the evidence of the applicant included the following: "(c) At this time [i e in about 1991], the applicant entered in [sic] a written agreement with his wife to accept the sum of $28,000 from his wife in full payment of his share of the house at Cardigan Street. (d) The house was not transferred to Mrs Glozier as the applicant was reluctant to pay the costs and stamp duty on the transfer of his equity in the property and the property has continued to be registered in joint names up until now." 15 The AAT referred to the statement by Mrs Glozier of 6 July 1998. The AAT then proceeded: "FINDINGS OF FACT 8. The applicant was not an impressive witness. He was a poor historian and did not sound convincing in his explanation as to why his interest in Cardigan Street, Somerset had not been formally transferred to his wife or why he not [sic] completed any property settlement with his wife, nor even consulted a legal adviser. 9. The evidence of the applicant is contradicted by the statement of his wife to a departmental officer on 6 July 1998. 10. The AAT is reluctant to accept as truth the evidence of the applicant in the absence of corroborative evidence. 11. The basic facts are however not in dispute and the AAT finds the following facts, namely:- (a) Mr. Glozier received rent assistance between 1993 and 1998. (b) He advised on 7 May 1993 that he paid board and lodgings of $80 per week at 1/24 Cardigan Street, Somerset. (c) Mr. Glozier has been a joint registered proprietor of the property at 24 Cardigan Street, Somerset, which included the unit in which he has lived since June 1984. (d) The applicant did not advise the Department that he was a registered part-owner of the property in which he lived (see statement of 7 May 1993). This is consistent with the applicant's present belief that he has no interest in the property located at Cardigan Street, Somerset. APPLICATION OF THE LAW 12. The principal issue to be determined is whether the applicant is an ineligible homeowner for the purpose of receiving rent assistance. 13. Section 11(4) of the Act defines a homeowner as a person who has a right or an interest in the person's principal home and that right or interest gives that person reasonable security of tenure in the home. 14. The applicant is the [sic] registered as joint owner of the property. He therefore has a right or interest in that property which on the evidence is his principal home. 15. By virtue of that registered joint ownership he has a right to live in the house until determined otherwise by the courts. To that extent he has reasonable security of tenure in the home." 16 The AAT also found that the payment of $80 per week was not rent because it was not, within the meaning of s 13(2), an amount payable "as a condition of occupancy of premises". The AAT held that the payment of $80 per week did not satisfy this requirement as the applicant need not make the payment to continue to reside on the premises.

Conclusion on the appeal 17 Counsel for the applicant argued that par 14 disclosed an error of law in that the AAT treated any interest in the property as sufficient to give the applicant reasonable security of tenure. It gave no consideration to the equitable interest Mrs Glozier acquired as a result of her purchase of the applicant's interest in the property and the consequent destruction of the security of tenure the applicant would otherwise have had. Alternatively, if the AAT had concluded that Mrs Glozier did not obtain an equitable interest in the property, it failed to make any finding of fact as to that question. 18 There is in my opinion some force in counsel's argument. Paragraphs 14 and 15 of the AAT's reasons in themselves are ambiguous. Is the AAT saying that being registered as a joint owner is a sufficient right or interest and that is the end of the matter, whether or not the applicant sold his interest to his wife for $28,000 as he claims? Or is it saying that it rejects the applicant's evidence as to the sale of his interest and finds that he is the beneficial owner of his joint interest? For the reasons I will mention in a moment, the latter interpretation is probably the preferable one. If it is, there can be little doubt a registered joint owner, unencumbered by any equitable claim, would have a right or interest in a property which gave him or her reasonable security of tenure. But I am puzzled by the reference in par 15 to "a right to live in the house until determined otherwise by the courts". Is this a reference to a possible sale under an order of the Supreme Court of Tasmania pursuant to an application by a joint owner under s 4 of the Partition Act 1869 (Tas), or perhaps pursuant to some order of the Family Court of Australia? Or is it a reference to an order that might be made in favour of Mrs Glozier seeking to enforce her equitable interest arising from a purchase of the applicant's half share? 19 However, reading the reasons as a whole I think the conclusion to be drawn is that the AAT has simply not accepted the applicant's account of the sale of his half interest. I note particularly pars 8, 9 and 10. It would be preferable if this finding had been stated explicitly, especially as there was a document which, if the applicant's version is to be rejected, must have been a forgery. And if the AAT treated the applicant's claim as a knowingly false one (it being inherently unlikely to be the sort of thing about which a person would be mistaken), why does the AAT speak of the applicant's "present belief that he has no interest in the property"? Nevertheless findings of fact can be implicit from a reading of reasons in their totality: A v Minister for Immigration and Multicultural Affairs (1999) 53 ALD 545 at par 54. 20 It is hardly necessary to cite authority for the proposition that the courts should not scrutinise reasons of administrative decision-makers pedantically or with a view to seeking out error: Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 286-7, Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996)185 CLR 259 at 291. It follows from this principle that there will be from time to time reasons which are not totally satisfactory but which do not cross the line into legal error or amount to a failure to fulfil the obligation to give reasons which include findings on material questions of fact and the evidence or other material on which those findings are based: Administrative Appeals Tribunal Act 1975 (Cth) s 43(2B). I think this is such a case. 21 The appeal will be dismissed with costs, including reserved costs.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Associate: Dated: 30 March 2000 Counsel for the Applicant: R A Hart

Solicitor for the Respondent: Australian Government Solicitor