Decision of the respondent is affirmed save for the requirement that the applicant pay the respondent a penalty in the sum of $1,000.00, which sum is deleted from the decision.

Note: These reasons consist of an edited transcription of reasons given orally at the conclusion of the hearing.

1. This proceeding has come to the Tribunal by way of a referral from the respondent at the request of the applicant.
2. On the 18 September 2008 a notice was issued requiring the applicant to repay $7,000.00 being the sum he received from the First Home Owners Grant and it was also sought that the applicant pay a penalty of $1,000.00.
3. Ms Neskovcin who appeared for the Commissioner of State Revenue (CSR) informed me that her client no longer seeks the $1000.00 by way of penalty. On 18 September the CSR gave notice to the applicant which required him to repay the grant.
4. The power for the respondent to seek repayment of the First Home Owners Grant is contained in section 48 of the First Home Owners Grant Act 2000.
5. The background to this application is that on 28 March 2003 the applicant while living in his parents' home in North Caulfield entered into a contract for the purchase of a property at 5 Cameron Street, Richmond, which I will refer to as "the property". The contract was settled on the 9 April 2003. I am informed that the property was in a very poor condition and as a result needed renovation and alterations in order to bring the property back to a condition where it would be satisfactory for someone to live in.
6. At a period between the 9 April 2003 and the 22 July 2003 the applicant attended the property for the purpose of doing work on it on several days per week. The only furniture in the property at this time was a bed. The applicant stated that he would sleep up to three nights per week on that bed. He stated that he did not use very much water or any water in the premises because he would return to his parents' home in North Caulfield for the purposes of having a shower. He also stated that most of his cloths were at his parents' home. I assume the nights that the applicant did not sleep at the property he slept at his parents' home where all or most of his belongings were situated.
7. On the 8 August 2003, a transfer was lodged for the applicant to become the registered proprietor of the property. I note that on the 11 April 2003 a notice of acquisition of an interest in the property was completed. One of the questions on the notice of acquisition was that, "will the property being acquired be the principal place of residence?" The answer was "no" to that question. The applicant says that he did not make the answer and indeed it is typed in. However, it is clear to me that the document is prepared on behalf of the applicant and as it in fact states so, therefore, I infer that the document was prepared on the applicant's instructions.
8. On the 26 July 2003 the property became tenanted pursuant to a 12 month lease and a bond was given by that tenant and ultimately repaid to the tenant at the end of the lease. A further lease was given to another tenant on the 23 July 2004 and again a bond was paid and at the end of the tenancy on 22 July 2003 that bond was reclaimed by the tenant.
9. I also note that the authority for the agent to lease the property was given in the name of the applicant's father Leo Mauro. Also the lease was given in the name of the applicant's father as landlord. The only explanation that the applicant offered for that was the agent made a mistake. Mr Trew, an accountant who appeared on behalf of the applicant, when challenged on the submission about the agent making a mistake agreed that Mr Leo Mauro would have known that he was not the landlord of the premises and therefore he should not have signed the agreement.
10. I thus infer that the applicant's father Leo Mauro, who gave evidence in this proceeding, assumed that the property belonged to him. As I have stated, on the 18 September 2008 a notice was issued by the respondent requesting repayment of the First Home Owners Grant of $7,000.00.
11. The circumstances in relation to the purchase and occupation of the subject premises have been investigated by the respondent. As a result of that investigation it does appear that at the relevant time where the applicant could have occupied the premises as his permanent place of residence very little water was used. When this was put to the applicant he then stated that he did not use any water during that period because he returned to his parents place for showering. It is also noted that the applicant's explanation to the respondent for not continuing to use this place of residence was at the time of purchase he intended to marry his then girlfriend and they intended to live in the subject premises. He stated that when the relationship came to an end he was then unable to afford the mortgage payments and, as a result, he had to move back to his parents' place and the premises became tenanted.
12. In a letter of the 15 October 2008 to the respondent the applicant states as follows:

I refer to your letter dated 18 September 2008 and wish to object against your decision under section 48 of the First Home Owners Grant Act. Prior to buying the property I was living at home with my parents in Caulfield South. After working hard for several years as an apprentice mechanic and saving where I could the opportunity came along to be able to purchase my first property with the assistance of a First Home Owners Grant. The intention was for my girlfriend and I to live in the property share bills and settle down. Unfortunately a few months after moving into the place in Richmond, the girlfriend left me and I was really struggling to pay the mortgage on my own wage. I was forced to move back with my parents and rent out the Richmond property. It was an unfortunate set of circumstances but I did not want the bank to take possession of the property and sell it.

1. By a letter of the 23 December 2008 the applicant again wrote to the respondent, he there stated:

As I mentioned last time, I only lived in the property for a short while and don't have specific records of the dates or kept any utility bills. My life was in turmoil because I had planned to live in the Richmond property with my then girlfriend and my wife to be but we broke up. I then had to move back home with my parents in Caulfield North and I have ended up staying there ever since.

The only way I could keep the property on my low wage without the banks getting their hands on it, was to rent it out and that is what I was forced to do. It was not my intention to own the property as rental. I was to live there with my girlfriend, pay the mortgage using both of our wages and get married.

1. When those documents were put to the applicant in cross-examination he admitted that the money to purchase the property was not lent to him by a bank. It was in fact given or lent to him by his father. He maintained it was lent to him. He then said that he used the word bank because he considered his father like a bank. I find that explanation quite extraordinary and I am unable to accept it. If the money had been given to the applicant by his father I see no reason he would not have stated that in the two letters to which I have referred. However he wrote to the CSR giving the impression that the property was mortgaged to the bank. The purpose of this letter was to deceive the respondent.
2. Further, the letters tend to indicate that the applicant lived in the property with his girlfriend. That is not the case. Further, the letters explained the lack of utility bills by the fact that the applicant did not keep such bills. However, in cross-examination the applicant said that there were no bills because he did not use any of the utilities and his electricity was supplied by generator, and I again repeat, that he attended his parents house for showering and therefore used none or little water. Thus I find his explanation why he did not have any records of utility payments is inconsistent with what he said orally in cross-examination.
3. We further note that the applicant at no time informed VicRoads, who are the driving licensing authority in this case, of any change of address. He was clearly bound to if he was living at the address in Richmond as his principal place of residence.
4. The respondent has also referred to the fact that the property has since been demolished and two units have been built on the land. I don't regard that evidence as useful.
5. The relevant statutory provision in this proceeding is to be found in section 12 of the First Homeowners Grant. It is noted that between sections 8 and 12 five criteria are set out which must be established by the applicant to be entitled to the grant. Section 32 of that Act in this circumstance puts the onus of proof on to the applicant. I note that the current First Homeowners Grant has been relevantly amended since the time of the purchase and the applicant's application for the grant. The relevant Act has been supplied to me by the respondent and it then read. Section 12(1) stated:

"an Applicant for a first homeowners grant must occupy the home to which the application relates as the applicant's principal place of residence within 12 months after the completion of the eligible transaction or a longer period approved by the commissioner".

1. In this particular instance if the applicant occupied the premises at all he would necessarily have had to occupy the same between the time of settlement that is the 9th of April 2003 and the first tenancy agreement being the 26th of July 2003.
2. There have been numerous cases decided on this point. However, the case of the Chief Commissioner of State Revenue and Farrington [2004] NSW ADTAP 41 at paragraphs 23 to 29 accurately state the principles that should be followed in order to ascertain whether an applicant has occupied the premises as his principal place of residence. I referred to those six principles in a matter of Boots v the Commissioner of State Revenue which is to be found at 204 VCAT 2549 at paragraph 29 I there stated:

The six principles which the member in Farrington adopted and with which I agree are as follows:

• the term should be given its ordinary meaning in the context in which it appeared;
• 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;
• the intention of the person concerned, gauged objectively, is relevant but not determinative of the issue;
• to occupy a home as his or her principal place of residence a person's occupation must have a degree of permanence to it; and connection to a place of residence of a transient, temporary, contingent or passing nature is not sufficient, nor is occupation for some other purpose;
• the short length of a person's residence, while relevant, is not determinative of the issue, as a short period of occupation may still have the requisite degree of permanence to it; although the fact that a period of actual occupation is short will make it harder to satisfy the requirement; and
• the reason for a person's departure from the home must be both reasonably and adequately explained when considered objectively in the light of the person's personal circumstances.

1. Before examining those criteria set out in Farrington's case to which I referred to in Boots' case I should note that when the applicant applied for the first homeowner's grant on the 7th October 2003 he stated that he intended to occupy the property on the 22nd February 2004. This statement is obviously incorrect. At the time the applicant made application for the first homeowner's grant the property was already tenanted on a 12 month lease which had begun the previous July. That lease would not have expired until July of 2004. That being the case it would have been legally impossible for the applicant to occupy the premises on the 22nd February 2004.
2. I will now examine each of the principles to which I have referred that was mentioned in Farrington's case.
3. Given the term occupy as a principal place of residence as used in section 12 of the Act in my view means that it would be a place of residence that was clearly occupied viewed by somebody from the outside. By somebody looking in from the outside I don't mean outside the windows but an unbiased observer, would think that the applicant was occupying the premise. The fact of sleeping in the premises up to three nights per week with only a bed in the premises as being the furniture, I doubt very much if any reasonable person would think that that was occupation. Further, as the applicant returned to his parents' house for showering in my view that clearly makes it non occupation of the premises.
4. Further, the fact that the applicant was returning to his parent's house and had very few of his possessions in the Richmond house but they were in the parents house leads me to believe that an unbiased observer would not regard the property as a principal place of residence.
5. The next matter that I must consider is whether a person having been residing or occupying as their principal place of residence is to be assessed objectively. This is similar to what I have dealt with previously.
6. The circumstances of the applicant staying in the place would in my view be looked at as no more than a person staying in a hotel for a few nights or a workman attending a country town in order to do a job which he/she may even attend for five nights per week for a period of months. Given those circumstances, no one would suggest that workmen were permanently residing at any premises in that country town.
7. Again the highest the applicant's case can be put is that he slept in the premises for three nights per week in order to do work there when it got too late for him to return to Caulfield. In my view even if that evidence is correct it does no more than suggest that he was staying there for the purpose of alteration and renovation not for the purpose of living in the premises.
8. The next matter that I must look at is the intention of the person concerned gauged objectively which is relevant not determinative of the issue. Again I refer to the fact that the intention of the person, here being the applicant, when gauging objectively cannot be that he intended to reside in the premises. I would mention here even though there was no contrary evidence I have some doubt as to the applicant's evidence that he stayed at the premises on three nights per week. The doubt I have as to the applicant's evidence is borne out by other matters which he was unable to explain satisfactorily. I refer here to the fact that the applicant stated that the property was mortgaged to the bank when it clearly was not. The fact that the bank was going to take the property when it clearly could not have because it did not have any interest in the property. I also take into account the evidence of Mr Leo Mauro who is clearly a very good father and a father who looks after his children. He has given his son considerable sums of money. It is inconceivable that a father with such a paternal attitude to his children would have thrown the applicant out of the house or would have sold the house "under" him. In my view the only explanation is that the house was bought as an investment property.
9. The next principle that I have to consider is whether the occupancy of the home has a degree of permanence to it, connection to a place of residence or was transient, temporary or contingent or of a passing nature. It is clearly not sufficient that the occupation should be transient, temporary, contingent or of a passing nature. In this particular instance, as I have described, at the highest, the applicant's occupation could have been temporary or transient. I note that, in all probability, the applicant had broken off with his girlfriend before he even spent a night in the house. (see paragraph 12 as hereof)
10. Thus taking the applicant's evidence at its highest, the applicant never lived in the house after the purchase contract was settled because he had already broken off with his girlfriend and he did not have sufficient funds of his own from his motor mechanic work to occupy the house. Therefore at best the occupation which he had was transitory or temporary and was contingent upon the alterations that the applicant was performing on the house.
11. The next matter that I must consider is the fact that a short length of a person's residence while relative is not determinative of the issue. As a short period of occupation may still have the requisite degree of permanency to it although the fact that the period of actual occupation is short it will make it harder to satisfy the requirement. In this particular instance clearly the actual occupation if it existed at all was short. However bearing in mind all the circumstances which I have outlined in this proceeding it could not be said to be anymore than transitory as I have previously said. It was transitory, temporary and contingent upon the alterations and renovations being performed. When those alterations and renovations were completed, in my view it was not envisaged the applicant would live in the premises.
12. The next matter that I have to consider is departure from the home must be reasonably and adequately explained when considered objectively in the light of a person's personable circumstance. In this instance, the applicant attempts to explain his departure from the home as a lack of finance due to his girlfriend leaving him and thus unable to pay the mortgage to the bank. As I have previously stated no bank was involved. Even if one accepts the applicant's evidence that he had a moral obligation to repay his father, it would not appear to me that there was an urgency in making such repayment particularly in light of Mr Mauro's evidence that he helped the children with money when they needed it. On examination of the applicant's bank account it appears that a sum in excess of $30,000.00 was deposited in that account by the applicant's father Mr Leo Mauro. Thus it is clear he had given his son in particular and his children generally large sums of money. Therefore, I cannot accept that Mr Leo Mauro would have insisted that the applicant vacate the premises if he could not pay him back the money.
13. Given all these circumstances, I have come to the conclusion that criteria in s.12 of the Act is not fulfilled and as a result I will affirm the decision of the respondent save and accept for the penalty of $1,000.00 which the respondent is no longer seeking.
14. The order that I will make is that the decision of the respondent is affirmed save for the penalty of $1,000.00 which the respondent no longer seeks.