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[2006] VCAT 1054
Victorian Civil and Administrative Tribunal
2009-07-03
Original judgment source is linked above.
CITATION: Sobhani v Chief Commissioner of State Revenue [2009] NSWADT 198
Applicant: Amir Sobhani PARTIES: Respondent: Chief Commissioner of State Revenue
First Home Owner Grant Act 2000 Duties Act 1997 Taxation Administration Act 1996 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Residential Tenancies Act 1987 Interpretation Act 1987 State Revenue Legislation Further Amendment Act 2005 Land Tax Management Act 1956
Lawrance & anor v Chief Commissioner of State Revenue [2002] NSWADT 104 Taylor v Chief Commissioner of State Revenue [2004] NSWADT 36 McKenzie v Chief Commissioner of State Revenue [2005] NSWADT 214 UH v Chief Commissioner of State revenue [2005] NSWADT 284 Scurry v Chief Commissioner of State Revenue [2006] NSWADT 28 Chief Commissioner of State Revenue v Ferrington [2004] NSWADTAP 41 Fisk v Chief Commissioner of State Revenue [2008] NSWADT 59 WH v Chief Commissioner of State Revenue [2006] NSWADT 199 Basonovic v Chief Commissioner of State Revenue [2006] NSWADT 236 CASES CITED: Huertas v Chief Commissioner of State Revenue [2007] NSWADT 28 Hare v Commissioner of State Revenue (Taxation) [2006] VCAT 1054 Alexopoulos v Commissioner of State Revenue (Taxation) [2006] VCAT 806 Daniell v Commissioner for ACT Revenue 2008 ACTAAT 1 Mawad v Chief Commissioner of State revenue [2005] NSWADT 207 Cullen v Chief Commissioner of State Revenue [2007] NSWADT 121 Chief Commissioner of State Revenue (RD) v McIlroy [2009] NSWADTAP 21 Federal Commissioner of Taxation v G M Swift and Others 89 ATC 5101 Giris v Federal Commissioner of Taxation (1969) 119 CLR 365 Stoke-On-Trent Borough Council v Cheshire County Council [1915] 3 KB 699 Re Ziino and Commissioner of State Revenue [2004] VCAT 1707
Applicant Representative: A McEwen, solicitor REPRESENTATION: Respondent Representative: B L Jones, counsel
ORDERS: The decisions under review are affirmed
1 The applicant is the registered proprietor of a residence situated at Sadlier in the State of New South Wales ("the property"). He purchased the property in 2004 and settlement occurred on 21 July 2004.
2 He applied for and received a $7,000 first home owner grant under the First Home Owner Grant Act 2000 ("the FHOG Act") to assist him to purchase the property. By virtue of the First Home Plus Scheme ("the FHP concession") under the Duties Act 1997 ("the Duties Act"), no duty was paid by the applicant on the transfer or mortgage of the property.
3 On 11 September 2007 following an investigation, the respondent formed the view that the applicant had failed to comply with the "residence requirement" under both the FHOG and the Duties Acts. Under s 12 of the FHOG Act and s 76 of the Duties Act, the applicant was required to occupy the property as his "principal place of residence" for a continuous period of at least 6 months starting within 12 months after completion of the agreement to purchase the property.
4 On 11 September 2007, the respondent proceeded to recall the grant under s. 45 of the FHOG Act and issued an assessment to recover the $7,000 grant. The respondent also proceeded to reverse his decision to offer the applicant the FHP concession and issued on 12 September 2007 under s 9 of the Taxation Administration Act 1996 ("the TA Act") an assessment to recover the duties payable on the transfer and mortgage of the property ($15,989.02).
5 The applicant lodged an objection on 13 November 2007 against both decisions. On 10 April 2008, the respondent notified the applicant that his objection had been disallowed.
6 In this application, the applicant seeks the review of the respondent's decision to disallow the objection.
7 The Tribunal had before it the documents lodged pursuant to section 58 of the Administrative Decisions Tribunal Act 1997. It received written submissions from the applicant and the respondent and also accepted the tender of two exhibits - Exhibit "A1": A statutory declaration by the applicant dated 2 December 2008 with attachments; and Exhibit "A2": Two statutory declarations by the applicant dated 15 February 2008 and 3 April 2008 respectively with attachments.
8 On 27 April 2004, the applicant exchanged contracts to purchase the property. Settlement took place on 21 July 2004. At the time of the purchase of the property, the applicant was residing in a rental property at Kemps Creek with his wife and daughter.
9 On 11 August 2004, the applicant applied for the First Home Owners Grant under the FHOG Act. In his application, the applicant stated that he had commenced to occupy the property on 27 July 2004. The grant was paid to the applicant on 26 August 2004.
10 On 15 July 2004, the applicant entered into a residential lease to rent the property to Mr Lawson, one of the three vendors of the property. The lease was for a term of 6 months, beginning on 22 July 2004 and ending on 22 January 2005. The lease provided that, at the end of the term of the lease, the tenant could remain in possession on the same terms unless and until the lease was terminated in accordance with the Residential Tenancies Act 1987 (NSW).
11 In his statutory declaration dated 15 February 2008, the applicant claimed that he had not read the Residential Tenancy Agreement "properly" when he received a copy from his real estate agents. His understanding was that Mr Lawson would "only stay at the property for a brief time after settlement (maybe three months or so)". But that he had now read and found that the lease period was 6 months. He further claimed that he recalls "approaching Captain Cook Real Estate in the last month of 2004 and requesting that they arrange for Mr Lawson to move out". But nothing happened until June 2005 when he personally rang Mr Lawson to ask him to give vacant possession of the property, and at the same time, his agents sent Mr Lawson a "Termination Notice". Mr Lawson failed to move out in the 60 days required by the Termination Notice.
12 On 18 October, the applicant's real estate agents lodged an application with the Consumer, Trader & Tenancy Tribunal to end the tenancy and obtain possession of the property from Mr Lawson. Mr Lawson moved out of the property on 26 October 2005.
13 In his objection dated 8 November 2007 to the assessment to recover the grant, the applicant indicated that when he obtained the possession of the property from Mr Lawson, the property was "not in a liveable" state. The "toilets, water supply lines, electricity lines, kitchen, sliding doors, windows etc were extensively damaged". He further stated that, from early November 2005, he personally "attended to the various repairs that were required to be done" and that he had "rectified the major part of the house property". He also indicated in the objection that he and his family were expecting to move "on or before the end of November 2007".
14 In his statutory declaration dated 3 April 2008 sent to the respondent he indicated that he would "take up occupancy at the subject property … on 9th April 2008".
15 In his third statutory declaration dated 2 December 2008, the applicant claimed that he "occupied the subject property" as his "residence from approximately 7th April, 2008, and completed the six months on or about 7th October 2008" and that he has since returned to live at the Kemps Creek rental property.
16 Further the applicant explained the nature of his stay at the property as follows: "10. The subject premises consist of three bedrooms. From April 2008 to October 2008 I stayed in one of the bedrooms at the subject premises as often as I possible. I slept there. I showered there. I cooked my meals there. I estimate that (except where my work took me away for the bulk of the week) I slept there three nights a week. I estimate that I spent about 4 nights a week away from the subject premises because of my work commitments … 11. I had a wardrobe of my clothes at the subject premises. My TV, DVD player, and CD player were there. 12. My wife did not live at the premises. However she did visit several times a week to clean the place. My wife and daughter visited me there, and we had meals together. 13. Although I treated the subject property as my principal place of residence from April 2008 to October, 2008 there were times when I was away from the subject property for long periods because of the nature of my work."
17 Attached to the statutory declaration were electricity and water bills in relation to the property.
18 At the hearing, Mr McEwen for the applicant confirmed that the applicant continues to reside at the rented property situated at Kemps Creek. He was, however, not aware of the present status of the property.
19 The FHOG Act was introduced in 2000 to encourage and assist home ownership and to offset the effect of the Goods and Services Tax on the acquisition of a first home. The scheme has been continued to assist first home buyers to purchase or build their first homes.
20 The entitlement requirements for a grant are set out in s 7 (1) of the FHOG Act as follows: "A first home owner grant is payable on an application under this Act if: (a) the applicant or, if there are 2 or more of them, each of the applicants complies with the eligibility criteria, and (b) the transaction for which the grant is sought: (i) is an eligible transaction, and (ii) has been completed."
21 In the applicant's case, the "eligible transaction" was the contract for the purchase of the property in terms of s 13(1)(a) and was completed under s 13(5)(a) of the FHOG Act when the applicants were entitled on 21 July 2004 to possession of the property.
22 The eligibility criteria is set out in Division 2 of Part 2 of the FHOG Act, which requires an applicant to satisfy 5 "Eligibility Criteria" to obtain a grant.
23 For the present purposes, the relevant eligibility criterion at issue is the fifth criterion set out in s 12(1) of the FHOG Act. There are various historical versions of this provision, the version that applies in this matter is as follows: "12 Criterion 5 - Residence requirement (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 for a continuous period of at least 6 months. (1A) However, if the Chief Commissioner is satisfied there are good reasons to do so, the Chief Commissioner may: (a) approve a shorter period, or (b) exempt the applicant from the requirement to comply with subsection (1). (1B) The period of occupation required under subsection (1), or the shorter period approved under subsection (1A) (a), must start within 12 months after completion of the eligible transaction or a longer period approved by the Chief Commissioner. (2) If an application is made by joint applicants and at least one (but not all) of the applicants complies with the residence requirement, the non-complying applicants or applicants are exempted from compliance with the residence requirement." 24 Subject to certain conditions, a grant can be paid under s 20 of the FHOG Act in advance in anticipation of the residence requirement. Section 23 of the FHOG Act gives the Chief Commissioner power to vary or reverse a decision made in respect of an application for a grant where he is later satisfied that the decision is incorrect. 25 Power to require repayment and impose penalties is given to the Chief Commissioner under s 45 of the FHOG Act. DUTIES ACT
26 In tandem with the grant scheme, the government also introduced the First Home Plus Concession scheme under the Duties Act. Section 69 of the Duties Act sets out the scheme as follows: "69 The nature of the scheme This scheme is intended to help people who are acquiring their first home. Under the scheme, the acquisition and any mortgage given to assist the financing of the acquisition is subject to a concession or exemption from duty."
27 Under s 70 the following transactions and instruments are eligible for consideration under the scheme: (a) agreements for sale or transfer entered into on or after 4 April 2004, (b) transfers that occur on or after 4 April 2004 (other than transfers made in conformity with an agreement for sale or transfer entered into before 4 April 2004), (c) mortgages over land the subject of those agreements or transfers. 28 Section 74 deals with eligible agreements of transfers and restricts the concession to agreements or transfers for the acquisition of a first home or the acquisition of vacant land intended to be used as the site of the first home. Under s 80 of the Duties Act, no duty is chargeable on an agreement or transfer of a dwelling valued up to $500,000 or $300,000 in the case of a vacant block of residential land if the application concerning an eligible agreement or transfer is approved by the Chief Commissioner.
29 An applicant under the First Home Plus Concession scheme must comply with s 76 of the Duties Act which, at the relevant time, provided as follows: " 76 Residence requirement (1) The home must be occupied by the person or persons who are acquiring it as a principal place of residence for a continuous period of at least 6 months, with that occupation starting within 12 months (or such longer period as the Chief Commissioner may approve) after completion of the agreement or transfer. This requirement is referred to as the residence requirement . (2) The Chief Commissioner may, if satisfied there are good reasons to do so in a particular case: (a) modify the residence requirement by approving a shorter period of occupation by the person or persons, or (b) exempt the person or persons from the requirement to comply with the residence. (3) In the case of an agreement or transfer for the acquisition of a vacant block of residential land, it is sufficient that the Chief Commissioner is satisfied that the vacant block is intended to be used as the site of a home to be occupied by the person or persons who are acquiring it as their principal place of residence. (4) The residence requirement does not apply to a person who acquires an interest in the property concerned solely for the purpose of assisting the other purchaser or purchasers in financing the acquisition. (5) For the purpose of this section, an agreement or transfer is completed when a purchaser or transferee becomes entitled to possession of the home and, if the interest in the land acquired by the purchaser or transferee is registrable under a law of the State, the interest is so registered. (6) (Repealed)"
30 Under s 76A, the Chief Commissioner can approve an application for the concession in advance of satisfaction of the residence requirement. However, if an application is approved in anticipation of compliance with the residence requirement, the approval is given on condition that, if the residence requirement is not complied with, the applicant must within 14 days after end of the period allowed for compliance give written notice of that fact to the Chief Commissioner, and pay the relevant duty to the Chief Commissioner.
31 Mr McEwen for the applicant conceded "that the applicant Mr. Sobhani did not occupy the property during the twelve (12) months after his purchase of the subject property" and the applicant's case was "essentially set out in his three (3) Statutory Declarations and the Objection Notice".
32 Mr McEwen submitted that the applicant had resided at the premises for six months. This was a case he further submitted where there were "good reasons" to exercise the discretion given to the respondent under s 12 (1A)(b) of the FHOG Act and s 76(2) of the Duties Act to exempt the applicant from the residence requirement.
33 The "good reasons" included the applicant's "frustrations at attempting to comply" with the requirement due to his "misunderstandings as to the length of the Residential Lease" and the delay caused by Mr Lawson to give vacant possession of the property. "Other factors which further delayed the occupation of the property were the scale of damage caused by the previous tenant, which made the property uninhabitable until it was repaired and brought to inhabitable state. The repair work took considerable time due to:- (a) The financial position of the Applicant, (b) The extent of the damage."
34 The respondent's case was that the applicant "never occupied the property as his principal place of residence within 12 months and never sought an extension before the period expired" "and in any event, the property was never his principal place of residence".
35 The respondent placed reliance on Lawrance v Chief Commissioner of State Revenue [20022] NSWADT 104, Taylor v Chief Commissioner of State Revenue [2004] NSWADT 36, UH v Chief Commissioner of State Revenue {2005] NSWADT 284, Scurry v Chief Commissioner of State Revenue [2006] NSWADT 28 and McKenzie v Chief Commissioner of State Revenue [2005] NSADT 214 to submit that the Tribunal had no power to retrospectively extend the period within which occupancy must take place after the expiry of the 12 months period under the FHOG Act. It was also argued that by "parity of reasoning the Chief Commissioner has no power to extend the residence period under s. 76 of the Duties Act" after the expiry of the 12 months period.
36 On the basis of the relevant factors highlighted by the Appeal Panel in Chief Commissioner of State Revenue v Ferrington [2004] NSWADTAP 41 to determine whether a property is the principal place of residence of the owner, it was submitted that "the property was never occupied by the applicant as his principal place of residence". In particular, it was submitted that - "34. It is apparent from the Applicant's own evidence he only occupied the property for the bare minimum 6 months period in the anticipation it would qualify him for the FHOG. He clearly did not occupy it with the intention that it would be his 'home'. Moreover, the property was occupied 'for some other purpose' namely in an attempt to qualify for the grant. 35. The Applicant's evidence establishes that was no permanence to his occupation of the property. It was of a temporary or passing nature. At all times the applicant's wife and daughter remained living at the Kemps Creek property, the home the Applicant returned to immediately after the 6 month period elapsed. On his own evidence Mr Sobhani never changed his electoral or driver's licence details because he considered it unnecessary. It was unnecessary because he always knew that the Kemps Creek property was his real home and permanent residence. It was where his wife and daughter lived and where he knew he would return as soon as the 6 month period was up."
37 Mr Jones for the respondent further submitted that there were no "good reasons" for the Tribunal to exercise the discretion under s 12 (1A)(b) of the FHOG Act and s 76 (2)(b) of the Duties Act to exempt the applicant from the requirement to comply with the residence requirement.
38 The principal issue in dispute was whether there were "good reasons" to exempt the applicant from the requirement to comply with the "residence requirement" under s 12(1A)(b) of the FHOG Act and s 76(2)(b). Also in issue was the power of the respondent to extend the period within which the applicant was required by s 12(1B) of the FHOG Act and s 76(1) of the Duties Act to comply with the "residence requirement".
39 It was not in dispute that the applicant did not comply with the "residence requirement" as required by s 12 of the FHOG Act and s 76 of the Duties Act within 12 months from settlement of the purchase of the property.
40 At the outset I can deal with the second issue, which can be promptly disposed. This was an application made prior to 7 December 2005 and the law applicable in this matter required that any extended period for purposes of the "residence requirement" had to be approved ahead of the expiry of that period (plus fourteen days). I have examined this issue in some detail in Fisk v Chief Commissioner of State Revenue [2008] NSWADT 59 as follows: "30. An examination of the relevant provisions and decided cases establish that any application for an extended period in relation to the relevant section 12(1) of the FHOG Act that applies in this matter had to be made within 12 months from settlement which occurred on 3 October 2003. 31. This approach has been applied in a consistent manner, with the exception of two cases, in a number of decisions of this Tribunal, including Lawrance & anor v Chief Commissioner of State Revenue [2002] NSWADT104; Taylor v Chief Commissioner of State Revenue [2004] NSWADT 36; McKenzie v Chief Commissioner of State Revenue [2005] NSWADT 214; UH v Chief Commissioner of State Revenue [2005] NSWADT 284; WH v Chief Commissioner of State Revenue [2006] NSWADT 199; Basonovic v Chief Commissioner of State revenue [2006] NSWADT 236 and Huertas v Chief Commissioner of State Revenue [2007] NSWADT 28. 32. In McKenzie , the President of the Tribunal in deciding this issue, stated this approach as follows: "20. The Parliament intended to set strict boundaries. The usual strict boundary is provided by the twelve month rule, that is people can have the grant in advance but they must move in within twelve months. This view is borne out by the following provisions - s 7(1)(b)(ii); s 7(2); s 12(1); and s 20(2). 21. The scheme of the Act contemplates certainty as to the period within which a person must move in. Any change must be made known ahead of the expiry of what might be called the usual period. The period of permitted delay is either twelve months or such extended period as has been permitted ahead of the expiry of that period (plus fourteen days)." 33. The approach taken in McKenzie was followed by the Victorian Civil and Administrative Tribunal in respect of similar provisions found in the Victorian First Home Owners Grant legislation in Hare v Commissioner of State Revenue (Taxation) [2006] VCAT 1054 and Alexopoulous v Commissioner of State Revenue (Taxation) [2006] VCAT 806. More recently, the Australian Capital Territory Administrative Appeals Tribunal has also taken a similar view in relation to similar provisions in Daniell v Commissioner for ACT Revenue [2008] ACTAAT 1. 34.However, in two cases, Mawad v Chief Commissioner of State Revenue [2005] NSWADT 207 and Cullen v Chief Commissioner of State Revenue [2007] NSWADT 121, the Tribunal has taken a contrary view.
35.In Mawad , the Tribunal had proceeded on the basis of the Commissioner's submission that, contrary to his previous position and Tribunal authorities, he had power during the relevant period to extend time for the compliance of the residence requirement even after the 12 months had expired. Subsequently, the President of the Tribunal in his reasons in UH v Chief Commissioner of State Revenue observed that the Commissioner's submission in Mawad was "uncritically" accepted by the Tribunal without any "substantive explanation" and expressed the view that the Tribunal should "continue to apply the considered views that have been expressed on the matter in earlier Tribunal decisions". 36.In Cullen the Tribunal concluded that "the discretions of the Commissioner under s 12 as applicable in this case, were not restricted as to time and were capable of exercise by the Commissioner at any time". … 37.Under s 34 of the Interpretation Act 1987 (NSW) , extrinsic material can be used to (a) confirm that the ordinary meaning of a provision is appropriate or (b) to resolve the meaning of an ambiguous or obscure provision or to determine the meaning of a provision where the ordinary meaning is manifestly absurd or unreasonable. However, where the terms of the relevant law are clear and easily understood, extrinsic material play no part. 38.In Cullen , the Tribunal did not refer to the above rules of interpretation but nevertheless proceeded to rely on the Second Reading Speech of the Minister without regard to the clear words of the relevant provisions. In paragraph 37 of the decision, the Tribunal placed a great deal of reliance on the "New s 20(5) of the FHOG Act". No new s 20(5) of the FHOG Act has been introduced. Perhaps, the Tribunal was referring to the "new s 12(5)". Whatever may be the case, the scheme of the FHOG Act is quite easily understood, as the relevant provisions are clear and not ambiguous or obscure and it is not necessary to resort to any extrinsic material in understanding their meaning."
41 In this matter no application was made for an extended period to comply with the "residence requirement" prior to the expiration of the 12 months period. The applicant was accordingly not entitled to any extended period. Note that, as submitted by counsel for the respondent, "by parity of reasoning" the Chief Commissioner at the relevant time did not have the power to extend the residency period under s 76 of the Duties Act".
42 Section 12 of the FHOG Act was amended by State Revenue Legislation Further Amendment Act 2005 to give the Chief Commissioner power to extend the period at any time even if the 12 months period has expired. Unfortunately, s 12(5), which gives the respondent that power, only applies to applications for grants made after 7 December 2005.
43 The principal issue was in relation to the discretion given to the Chief Commissioner under s 12(1A)(b) of the FHOG Act and s 76(2)(b) of the Duties Act. Under either provision, the Chief Commissioner, if he is satisfied there are good reasons to do so, may exempt the applicant from the requirement to comply with the "residence requirement".
44 In the absence of any express direction in the relevant legislation as to how the discretion is to be exercised in a particular case, the decision-maker must be guided by the underlying purpose and policy "… so far that is manifested" in the relevant Acts: see Giris v Federal Commissioner of Taxation (1969) 119 CLR 365, Windeyer J at page 384. In Federal Commissioner of Taxation v G M Swift and Others 89 ATC 5101, French J in considering a discretion of a similar nature made it clear that the "dispensing power is incidental and ancillary to the primary object of the legislation" and that its exercise must not "undermine the primary purpose" of "the scope and objects of the Act".
45 The applicant applied for the grant on 11 August 2004 and, in his application, he indicated the date of occupancy as "27/07/2004". That was clearly a false statement because the property had been let by choice from 22 July 2004 for a term of 6 months under a lease he signed as landlord of the property. The applicant claimed that the property was only let for six months so that he could comply with the residence requirement within the 12 months allowed from settlement date. The termination notice to the tenant was not sent until 8 June 2005 and action to obtain vacant possession was only taken on 26 October 2005. The applicant did not contact the respondent to inform him of his failure to comply with the residence requirement. The property remained vacant from 26 October 2005 until 7 April 2008. The applicant claimed that the tenant left the property in a state requiring some repair work. The repair work was by choice of the applicant extended over more than two years.
46 It was also claimed by the applicant that he occupied the property from 7 April 2008 to 7 October 2008. During the stay he only slept at the property 3 nights a week. He spent the other nights away on work assignments in country New South Wales. His wife and daughter continued to live at the Kemps Creek property.
47 As the Tribunal has no power in this matter to grant an extension beyond the 12 months period to comply with "residence requirement" this stay cannot be taken to satisfy the "residence requirement". It is, however, a matter relevant in considering whether the discretion to exempt the applicant from the "residence requirement" should be exercised.
48 In determining a person's principal place of residence, the principles or factors suggested by the Appeal Panel of the Tribunal in Chief Commissioner of State Revenue v Ferrington [2004} NSWADTAP 41 are widely used by the Tribunal. They were recently adopted by the Appeal Panel in Chief Commissioner of State Revenue (RD) v McIlroy [2009] NSWADTAP 21. The Appeal Panel in adopting the factors summarised the factors as follows: First, the words "principal place of residence" should be given their ordinary meaning in the context in which they appear … Thus the Commissioner's reference to the provisions of the Land Tax Management Act 1956 is of no assistance. 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 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, or contingent or of a passing nature, or for some other purpose. One may occupy premises for a short time or 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 entirely out of the 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.
49 Since the decision of the Appeal Panel in Ferrington, the FHOG Act has been amended to stipulate a fixed period of 6 months as a statutory residence requirement to qualify for the grant. The suggested fifth factor has now become less relevant for purposes of determining the residence requirement under the FHOG Act.
50 A person's place of residence is usually understood as "the place where he eats, drinks and sleeps" (per Ridley J in Stoke-On-Trent Borough Council v Cheshire County Council [1915] 3 KB 699 at 706). The onus to establish one's principal place of residence is usually discharged on the basis of various matters. It is important to note, as observed by the Victorian Civil and Administrative Tribunal in Re Ziino and Commissioner of State Revenue [2004] VCAT 1707 in considering whether the applicant had satisfied a similar residence requirement under the First Home Grant Act 2000 (Vic) that: "… while sleeping by itself in a place can be an indication of a principal place of residence, it is not the sole matter to be taken into account. One needs to look at a whole indicia of matters …One needs to look as well at where the applicant ate; his use of electricity and the furniture and fittings and other matters such as entertainment of friends in the house… Sleeping in a place does not make a residence. It has got to be the whole indicia of things that are done in a home which are described in the cases…"
51 Other indicia would include evidence regarding the applicant's mail, his or her address for purposes of a driving licence, the electoral roll, immigration purposes and use of a telephone at the residence.
52 I am not satisfied that the claimed occupation of the property was as his principal place of residence. The applicant did not change his address for purposes of the electoral roll and his driving licence. There was no independent evidence to support his claim that he used and occupied the property as his principal place of residence. His own evidence was that the occupation was merely for 6 months and he only used one room at the property for about three nights each week. I agree with the submission made by Mr Jones for the respondent that "the property was occupied 'for some other purpose' namely in an attempt to qualify for the grant" and was not occupied "with the intention that it would be his 'home'". The fact of the matter is that the FHOG and Duties Acts require more than just acquisition of a property and using the property as a place to sleep during a period of six months. It does not seem to me that the applicant did enough to establish that the property was his principal place of residence during the period. The applicant did not relinquish the family home at Kemps Creek occupied by his wife and daughter at any stage or for any period in the relevant years. The applicant moved back to stay with his wife and daughter at Kemps Creek after the short period of stay at the property. Some 5 years after the purchase of the property the applicant continues to reside at Kemps Creek.
53 The discretion is intended to allow the grant to be retained under the FHOG Act and the FHP Concession to apply under the Duties Act in circumstances where the applicant had a real bona fide intention to occupy and use the home as his or her principal place of residence, but failed to do so due to a change in circumstances after the purchase of the home. Generally speaking, an acceptable circumstance would be one outside the control of the applicant. Without placing any limitation, the circumstances would include the need for an applicant to move interstate or overseas to carry out work duties, the serious illness of an applicant after exchange of contracts preventing occupation and use of the property, or a financial difficulty, for example loss of the income-earning job, after purchase of the property.
54 The applicant did not establish that there was any change in his circumstances after his purchase of the property. The property was let by choice to earn rental income. The applicant did not demonstrate any real urgency to obtain vacant possession. The applicant's short occupation of the property can best be described as "transient, temporary, contingent or passing nature" and little weight can be given to the occupation for purposes of the discretion. The applicant has, some 5 years later, still not occupied the property as his principal place of residence.
55 Against the factual background, the respondent was clearly entitled under s 12(1A)(b) of the FHOG Act and s 76(2)(b) of the Duties Act, respectively, to refuse to exempt the applicant from the requirement to comply with the residence requirement.
56 If, on the other hand, the discretionary relief had been given, the respondent would have clearly "transgressed" the threshold fixed to achieve the primary objective of the relevant legislation. The primary objective of the relevant provisions is to assist people resident in New South Wales to acquire their first home and not to purchase their first investment property. The "residence requirement" ensures that the property is used and occupied as the principal place of residence by an applicant getting a grant and the First Home Plus scheme duty concession.
57 Accordingly the decisions under review are affirmed.
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.
Sobhani
Chief Commissioner of State Revenue