In December 2014 the Applicant and a co-purchaser completed the purchase of a newly erected residential strata unit at Macquarie Park (the Home) and commenced occupation of the Home as its first occupiers. In July 2015 the Applicant and his co-purchaser applied for a First Home Owners Grant (the Grant). The Respondent decided to reject the application on the basis that the Home was not a "new home" (the Decision). The Applicant and the co-purchaser objected to the Decision on the basis that the Office of State Revenue (OSR) website defined a new home as "a home that has not been previously occupied, including occupation by the builder, a tenant or other occupant" and the Applicant had received written advice from an officer of the OSR to the effect that the Home qualified as a "new home" for the purpose of the Grant. The Respondent disallowed the objection (the Objection Decision) as a relevant "new home" is "a home that has not been previously occupied or sold as a place of residence" (OSR emphasis) and the Home had previously been sold by the developer to another purchaser who had then on-sold the Home to the Applicant and his co-purchaser. The Applicant applied to the Tribunal to review the Objection Decision.
[2]
Issues
The Applicant claims that the Tribunal should find that the Home is a "new home" within the meaning of the First Home Owner Grant (New Homes) Act 2000 (the Act), that he and his co-purchaser were misled by the OSR and that the Respondent cannot now claim that the Home is not a "new home".
The Respondent submitted that the only question before the Tribunal is whether or not the Home is a new home within the meaning of the Act, that the Respondent made no decision reviewable by the Tribunal under the Administrative Decisions Review Act 1997 (the ADR Act) as to whether or not the Respondent misled the Applicant and in any event any misleading conduct by the Respondent (which is denied) would not "exonerate the application of the" Act.
I find that the issues to be determined by the Tribunal are:
1. to identify the decision the subject of the application to the Tribunal;
2. to determine whether or not the Home was a new home within the meaning of the Act in respect of the transaction for which the Grant is sought; and
3. if the home was not a new home in respect of the previous issue was the Applicant relevantly misled by or on behalf of the Respondent, and if so, is the Grant payable.
[3]
Material before the Tribunal
The Respondent relied on documents filed pursuant to s 58 of the ADR Act; an affidavit by Robert Ghanem affirmed 20 January 2016, written submissions by Mr Walker dated 22 January 2016 (RS) and 9 February 2016 and oral submissions by Mr Walker.
The Applicant relied on his written submissions dated 28 January 2016 (AS), a three page document filed 14 December 2015 (being documents filed in support of his application to the Tribunal), three attachments to AS, and his oral submissions.
[4]
Legislative scheme - entitlement to grant - eligibility criteria - eligible transaction
The legislative scheme of which the Act is part entitles purchasers of a new home who satisfy certain eligibility criteria to a grant of money from the State government if their purchase is an eligible transaction and has been completed. The requirements for the entitlement to the Grant are set out in the Act as are relevant definitions including the definition of a new home. I observe that all references to sections in these reasons are to sections of the Act unless stated to the contrary.
[5]
Decision the subject of the application to the Tribunal
Section 28 of the Act enables the Applicant to apply to the Tribunal to review the Decision if the Applicant is dissatisfied with the Respondent's determination of his objection. There is no dispute that these proceedings are a review of the Decision rather than a review of the Objection Decision notwithstanding the manner in which the Applicant completed the application form for review by the Tribunal.
[6]
Onus
Section 28 provides that the Applicant has the onus of proving his case in his application to the Tribunal. The requisite standard of proof is the "balance of probabilities" Cornish Investments Pty Limited v Chief Commissioner of State Revenue (RD) [2013] NSWADTAP 25 at [31] and B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187, (2008) 74 NSWLR 481 at [104].
[7]
Jurisdiction of the Tribunal
Section 29 provides that the Tribunal may confirm, vary or reverse the Decision and make any further order as to costs or otherwise as it thinks fit.
[8]
Was the home a new home
The Decision (at page 33 of the s 58 documents) states that the Grant may only be approved if the Applicant (and his co-purchaser) satisfy each of the eligibility criteria. The Decision then states that the Applicant:
was not eligible for the grant for the following reason:
Rejected - Not a new home as it is not the first sale of the home.
The Objection Decision provides more detail as to the reasoning for rejecting the Grant application than did the Decision, including providing references to some provisions of the Act and a discussion of two decisions of the Administrative Decision Tribunal namely Nairn v Chief Commissioner of State Revenue [2011] NSWADT 41 and McTackett v Chief Commissioner of State Revenue [2003] NSWADT 154.
In summary the Objection Decision provides that the Grant is payable on an application under the Act if the applicant complies with relevant eligibility criteria and the transaction for which the Grant is sought is an eligible transaction which has been completed. The Respondent relies on ss 7 (1) (a) and (b) in this regard. The Objection Decision then refers to s 13, which relevantly defines an "eligible transaction", and states that the eligible transaction of the Applicant was that of a contract for the purchase of a new home in New South Wales (page 41 of the s 58 documents). The Applicant does not dispute these aspects of the Objection Decision.
Importantly the Objection Decision provides the definition from s 4A of a new home. The definition is:
4A (1) A new home is a home that has not been previously occupied or sold as a place of residence, and includes a substantially renovated home and a home built to replace demolished premises
For the purpose of these proceedings, the relevant part of the s 4A definition is a new home is a home that has not been previously occupied or sold as a place of residence (my emphasis). In relation to the emphasised part of the definition the Applicant submitted:
The word between two definitions is an "OR" not a "AND", which means a new home only need to meet one of these two definitions. If we need to meet both, the wording should be changed to "AND" or "Neither… NOR…
Also, by law, if the definition is ambiguous, it will benefit the party who "did not draft it", which in this case, is me.
Therefore, all previous cases that Office of State Revenue used to against my case are based on the same mistake. They should not be used as support for decision of my case. (sic)
The Respondent relied on Nairn and McTackett, in particular in Nairn at [77] where the Tribunal said:
"Having regard to the plain words of the legislation, it is clear that where a building (or part thereof) is sold as a residence, it will not qualify again as a "new home". Accordingly where there are multiple sales of one property "off the plan" as it were, then it would appear that only the "first" purchaser may qualify for the Boost and Supplement, and to the extent that such a person does not satisfy the "residence requirement" (i.e. they engage only in buying and selling "off the plan"), it effectively means that no person may access the Boost or Supplement.
The Respondent submitted at [31] in RS:
The applicant's argument that the use of the word 'or' between 'previously occupied' and 'sold' means that only one of those situations need apply for the subject property to be a 'new home' fails to appreciate the import of the words 'has not been' which precede them. By saying that a home will be a 'new home' if it 'has not been previously occupied or sold', the legislature's intention is clear: either of those two situations disqualifies a home from being a 'new home'. The assertion of alternative meetings to what the text of a statute makes clear will not displace the clear meaning (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27 at 46-47).
I prefer the Respondent's interpretation of the definition to that of the Applicant. The words "has not been previously" qualify the words "occupied" and "sold" to the effect that if the home has been previously occupied or has been previously sold (as a place of residence) then the home no longer fits within the s 4A definition of "new home".
I do not find that there is any relevant ambiguity in the definition. Accordingly, there is no alternative meaning to benefit the Applicant.
With respect, I agree with the reasoning in Nairm in respect of the interpretation of the definition.
Having regard to my findings, the Home was not a "new home" for the purpose of the Act in respect of the relevant transaction and to that extent the transaction was not an eligible transaction in accordance with s 13 (1) (a) and the application for the Grant must fail.
[9]
Was there any relevant misleading of the Applicant and if so is there any estoppel against the Respondent
The Applicant submitted:
1. the Respondent's website contained a definition of a new home which contained three alternative provisions, one of which was:
a new home is a home that has not been previously occupied, including occupation by the builder, a tenant or other occupant
1. an officer of the OSR provided email advice to the Applicant to the effect that subject to the date of the relevant transaction the Applicant was entitled to the Grant; and
2. he relied to his detriment on the website and the written advice and has been relevantly misled by the Respondent.
It may well be, having regard to the evidence produced by the Applicant, that there has been some misleading of the Applicant by the Respondent or the OSR. However, having regard to the settled law in respect of the lack of effect of estoppel in revenue circumstances, it is not necessary for me to make a finding in relation to whether or not there was any relevant misleading of the Applicant by the Respondent.
There is no dispute that any entitlement of the Applicant to obtain the Grant is an entitlement derived from the Act. Part 2 of the Act relevantly states:
7 Entitlement to grant
(1) 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.
(1A)…
(2) An applicant need not comply with the eligibility criteria to the extent the applicant is exempted from compliance with the eligibility criteria by this Act.
(3)…
…..
13 Eligible transactions
(1) An eligible transaction is:
(a) a contract made on or after 1 October 2012 for the purchase of a new home in New South Wales…
There is no submission by the Applicant that he is exempted by the Act from compliance with the eligibility criteria. As noted above I have found that the Home was not a "new home" as defined in s 4A. Accordingly, the relevant transaction was not an eligible transaction and the grant was not payable.
The Respondent is required to administer the Act and applications made for grants in accordance with the law, McTackett at [23] and the decisions of the High Court referred to by Verick JM at [10] to [12] in Stature Pty Ltd v Chief Commissioner of State Revenue [2002] NSWADT 271.
Even if the Respondent or an officer of the OSR had relevantly misled the Applicant I am not aware of any authority, nor was any authority relied on by the Applicant, that would entitle the Applicant to a grant to which he was not otherwise entitled pursuant to the Act.
Having regard to the above findings it is the correct and preferable decision of the Tribunal that the decision of the Chief Commissioner under review is affirmed.
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
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.
Decision last updated: 07 April 2016