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

1. The Commissioner here has approved no longer period of time. He says that at no point did Ms Tsang occupy the property at Unit 1/75 Drummond Street as her principal place of residence. He goes further and submits that upon the evidence I should find that she never intended so to occupy the property.
2. Ms Tsang's case on review is first, that she did occupy the property as her principal place of residence for the period 5 to 18 February 2002, that is a period within 12 months of the making of the grant whatever day around about the period of June/July 2001 one chooses as the date on which the grant was made. Secondly, Ms Tsang says that in any event even if that were not correct, the notice under Section 48 comes too late. It will be recalled that Section 23(2) of the Act requires that the process in question here which I might describe as a claw back, must be set in motion by way of the reversal of the Commissioner's decision within five years. Ms Tsang says that the notice itself asserts that the grant was made upon the decision of Mr Mellows of St George Bank Limited on 5 June 2001. She says therefore, the power to exercise or make a claw back under Sections 23 and 48 expired on 4 June 2006.
3. Alternatively, by reference to one of the documents relied upon by the Commissioner, the date for payment or approval of the grant should be regarded as having occurred on 14 June 2001. On this view she says, the claw back power expired on 13 June 2006. On either view she says the attempted claw back comes too late and is therefore ineffective.
4. I turn therefore to the first of Ms Tsang's grounds, that is, the denial of the Commissioner's assertion that the residency requirement has not been satisfied. Ms Tsang's case is that she resided in the property for a short time as her principal place of residence from 5 to 18 February 2002. She has produced a statement from the Commonwealth Bank of Australia addressed to her with respect to an account which she held with that bank in February 2002 addressed to her at Unit 1/75 Drummond Street, Carlton. She has also produced documents to show that at the relevant period she worked in the Central Business District. She says that residence in Carlton was particularly convenient for her when she worked as an employee in the Central Business District. She was able to walk to her place of employment, thereby saving on the cost of public transport fares or petrol and parking charges were she to have travelled by motor car.
5. Against these matters the Commissioner has produced a statement and evidence from Mr House of a property management company. Mr House was an employee of Melbourne Inner City Management Pty Ltd, an organisation which provided management services for rental property. Mr House produced an authority to let dated 20 June 2001 with respect to Unit 1/75 Drummond Street, Carlton. It will be noted that this authority was signed the day before settlement took place. The authority asked MICM to interview and select tenants on behalf of Ms Tsang and also to continue to lease the property in the event of vacancy. The evidence showed, and I did not understand this to be disputed, that there was an initial tenancy from August 2001 which lasted until 5 February 2002 and there was then a further tenancy lasting for some considerable time thereafter commencing on 18 February. Mr House's evidence was that he was unaware of any wish by Ms Tsang to take up residence in the premises and that as far as he was aware the premises were under MICM's continuous management throughout the relevant period including the whole of February 2002. He produced a letter to Ms Tsang noting the departure of the outgoing tenant and stating an intention to re-tenant the premises forthwith. Mr House gave no indication that MICM had received any indication from Ms Tsang either that a new tenant should not be obtained or that she was intending to remove the property from MICM's management in 2002.
6. Ms Tsang says that after a few days residing in the premises she found them unsatisfactory and lived elsewhere while the new tenant came into possession on 18 February.
7. Mr House also said that he recalled Ms Tsang asking him if it could be arranged that utility charge accounts should be sent to the her so that she could thereafter seek recompense from the tenant. He found this an odd arrangement. In all the circumstances and particularly having regard to the fact that Ms Tsang elected not to give sworn evidence and thereby elected not to expose herself to cross-examination, I believe the proper inference to draw is that the subject property was held by her at all material times including the period 5 February to 18 February 2002 as an investment property to be offered for rental. I reject as inherently unlikely the proposition that she took up residence for some short period of time between tenants, apparently without having told her managing agent and without her residency apparently coming to the attention of the managing agent during the process of changeover of tenancy which would of necessity have entailed inspections by the new tenant.
8. The fact that the authority to manage was signed the day before settlement, I think also entitles one to draw the inference and I do draw the inference that it was Ms Tsang's intention to hold these premises as a rental investment and not as a principal place of residence for an indefinite period. It follows therefore that in so far as Ms Tsang denies the finding made by the Commissioner as to her having used the premises as her principal place of residence, I reject her contentions and accept the findings which the Commissioner urges me to make in the circumstance that the property was not used as a principal place of residence within the 12 month period. Criterion 5 as set out in Section 12 of the statute was not met. Moreover, since it was not intended that the residency requirement should be met, I believe that the Commissioner is entitled under Section 23 to reverse the decision which he made initially to award the grant on the basis that his decision was incorrect.
9. I turn then to the second point taken on review by Ms Tsang and that is the contention that the Commissioner has moved too late and outside the five year time limit laid down by Section 23(2) of the Act. Crucially the finding on this point depends upon the date on which I find the initial decision was made. The Commissioner's case is that the notice given under Section 48 by his delegate is simply incorrect in so far as it refers to 5 June 2001 as the date upon which the Commissioner made his decision. Whilst I have heard no particular argument on this point I am prepared to accept a submission put in summary form by Mr Broadfoot, Counsel for the respondent, that even despite the Commissioner's contention that his own delegate's notice had an incorrect date in it if the Commissioner is proven correct in the case he now puts the notice is not invalid for having included the incorrect date. The High Court of Australia some years ago now in Project Blue Sky Inc v Australian Broadcasting Authority (1988) 194 CLR 355 held that the effect of failure to comply with statutory requirements depended upon the intention of Parliament as to the consequences of non-compliance which intention was to be derived from the true construction of the relevant statute. I find nothing in the First Home Owner Grant Act 2000 to suggest that Parliament would intend that if the Commissioner otherwise had an appropriate right of claw back that it should be invalidated simply because the wrong date for the decision had been included in the relevant notice. I should observe also, in the present case, that Ms Tsang appears to have been in no doubt as to which First Home Owner Grant was being demanded. So she was subjected to no confusion or uncertainty as to precisely what was being demanded of her.
10. The Commissioner called evidence from one of his officers, Mr Holland who on his own account is one of the people in the Commissioner's office most familiar with the systems which are used for the payment of the First Home Owner's Grant. He says that special delegated authority is given to officers of private lending institutions as to the payment of First Home Owner Grants. They input information into the system and the computer system acting on behalf of the Commissioner applies criteria and makes the adjudication whether to pay or not pay the relevant grant on the part of the Commissioner.
11. Mr Holland produced documents, the effect of which was that at or about the same time as the application from St George Bank was lodged, an application with respect to the same property was lodged by another financial institution, namely BankWest. That grant was actually paid out but was later reversed. The pendency and success of the duplicate application held up processes of the grant which is the subject of the present proceeding. According to Mr Holland's account it held it up until 3 July and he says that that was the date on which payment was made. Ms Tsang says that given that her transaction settled on 21 June and the $7,000 grant was part of the consideration paid to enable the sale to go through, payment must have been made on an earlier date. There was no explanation as to exactly how the $7,000 has been used or as to whether it had formed part of the consideration paid to settle the transaction. The point just described was one raised by Ms Tsang for the first time in her submission in reply and so it is perhaps not surprising that the Commissioner did not call any evidence to deal with that particular point. The material produced from the Commissioner's office however seems to state quite clearly that no payment was made until 3 July and aside from the point which I have just described, Ms Tsang is unable to produce any material that would suggest to the contrary. The inference which I will draw is that the bank went forward using its own funds to settle the transaction but upon the assumption that at some time in the fairly near future it would receive the First Home Owner Grant. Alternatively, if it did not then Ms Tsang would have been left with a $7,000 larger mortgage debt than she would have had had the grant not been paid.
12. The material from the Commissioner's office with the sole exception of the claw back notice itself, all is consistent with the view that whilst the application was initially input by St George Bank Limited on 5 June payment was not made until 3 July. In my view, until payment is made or an unconditional acceptance of liability arises on the part of the Commissioner it cannot be said that the grant has been made. There is no evidence, I think, of any payment earlier than 3 July and hence in my five the five year period as laid down by Section 23(2) must be calculated as beginning on 3 July. It follows therefore that the fall back notice was within the five year period, hence I affirm the respondent's determination.