1. The applicant stated in documents which he sent to the respondent that he occupied the premises for 3-4 days per week during the period from December 2009 to June 2010. When I asked him about this first thing this morning he said that was not right. He said he occupied the premises on 2-3 days per week. However in cross-examination when pressed by Miss Neskovcin, counsel for the respondent, about this matter he said on many occasions for a period of at least three months in the period between January and April 2010 he occupied the premises for only one day per week or 1-2 days per week. There was no credible explanation given as to why there was this divergence in the applicant's evidence.
2. While on the topic of divergence of the applicant's evidence I also note that the applicant said to me this morning when I questioned him as to how he could afford to live in these premises that he was earning $700 net per week and his mortgage payments were $400 net per week, thus he had $300 over. However when questioned in cross-examination about these matters the applicant changed his story. He said that he was earning approximately $680 gross per week, that is before tax, and not taking into account the rental payments received from the property. Again there was no explanation given for this discrepancy when it was pointed out to the applicant.
3. These figures tend to show that the only way the applicant could afford to own this property was to have it rented. To put it differently, the applicant could not afford to live in these premises. I also note that the applicant's use of utilities in these premises was very limited indeed. Gas was used for the purposes of hot water and cooking. From the period of 7 January to 10 March 2010 the applicant used 117.73 MJ of gas and from the period of 10 March to 12 May 2010 he only used 39.56 MJ of gas. He explained this by saying that in the period between January and April of 2010 he did not shower at the property at all. He said he only used the toilet at the property and he very rarely cooked except on his portable barbecue. It is also noted that he stated in material which was sent to the respondent by his then solicitors that he in fact had showered at the property.
4. The applicant's evidence is also brought into contrast by the applicant's water usage at the premises between 24 December and 28 January, when he used 1 kilolitre of water. Between 29 January and 28 April he used no water whatsoever and between 29 April and 18 June 2010 he used just 1 kilolitre. This indicates to me that the applicant must have not resided in the premises at all between 29 January and 28 April. Using no kilolitres of water whatsoever, that is no water whatsoever, between 29 January and 28 April indicates to me that the applicant could not have even used the toilet. It is absolutely inconceivable that if the applicant was residing at the property that he did not use the toilet at least on some occasions. He admitted that he would need to use the toilet. The only conclusion I can draw from the lack of any water use during the period from 29 January to 28 April 2010 is that he was not in residence at all during that period.
5. The applicant told me that his mother was very sick and in about February 2010 she was informed that she only had a short while to live. He wanted to spend as much time as he could with her. That may be so but nonetheless it indicates to me that in that period of January to April he was not living in the premises at all and in the other periods from December 2009 to January 2010 and April 2010 to June 2010 he must have only been using the premises on a minimal basis.
6. In the matter of Patel v Commissioner of State Revenue 2012 VCAT 913 at [13] I found that it was inconceivable for normal use of water for sanitary means of a toilet, showering more than once a day that water would not be used. Again I find that the same principle applies here. It is quite inconceivable that anybody could have been living in these premises at all and used such little water, it would be completely unsanitary. I can only come to one conclusion about that and that is that the premises were not occupied.
7. Insofar as electricity use was concerned, in the period from 31 December to 4 March 2010, 190.1 kilowatts were used. In the period from 5 March to 4 June 2010, 127 kilowatts were used and in the period from 5 June to 18 June 2010, no electricity was used. I note that in the period from 31 December to 4 June there was a little over a daily use of 2 kilowatts. It is also inconceivable that someone could use such little electricity. From 5 June 2010 no electricity was used at all. The applicant said that he used no electricity because he used candles. I find this extraordinary. June is a winter month and one would need some sort of heating. The applicant said he used a jumper. One would need lighting to read and maybe to watch television. He did have a television set but no electricity was used whatsoever. I find it difficult to accept that the applicant would have been living in the premises during this period.

1. In order to determine these matters, the New South Wales case of Commissioner of State Revenue v Ferrington 2004 50 ATR 157 set out the principles that needed to be considered. They are:
   • First, the words 'principal place of residence' should be given their ordinary meaning in the context in which they appear.
   • Secondly, consideration whether a person has been residing or occupying the premises as their principal place of residence is to be assessed objectively in the light of 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. Connection to a place of residence or transient, temporary or contingent or passing nature is not sufficient, nor is occupation for some other purpose.
   • Fifthly, the short length of a person's residence while relevant is not determinative of the issue.
   • Sixthly, the reason for a person's departure from the home must be both reasonable and adequately explained with considered objectivity in the light of the personal circumstances.

1. There are five criteria in relation to a first home owner's grant that are set out in sections 8 to 12 of the First Home Owner's Grant Act 2000 which I will refer to as "the Act". The only criteria that I am concerned with here is the criteria found in section 12 which is the fifth criteria. Section 12(1) reads as follows:

"An applicant for a first home owner's 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 six months or a lesser period approved by the Commission commencing within the 12 month period immediately after the completion of the eligible transaction or within a longer period approved by the Commissioner."

1. Thus, the applicant must show that he used the Frankston property as his principal place of residence for a period of six months which in this particular instance is from 20 December 2009 to 21 June 2010. In Amelio v Commissioner of State Revenue 2012 VCAT 265 at [15], Judge Macnamara stated:

"The first .... principles referred to in Farrington are the commentaries on how the enquiry should be approached. The other three principles are substantive. This has been upheld by the Tribunal in other cases. The first requirement deals with the words 'principal place of residence'. The words 'occupy' and 'principal place of residence' are not defined by the Act, however they have been referred to in several cases of this Tribunal."

1. It has been held the words 'occupy as a principal place of residence' should be given their ordinary meaning having regard to the objects and purpose of the Act. In that context, 'occupy' has been held to mean reside in the property and that residence must be such that it is the person's principal place of residence or home which required that the occupation be ongoing and involve elements of permanence, see Bates v Chief Commissioner of State Revenue 2004 NSW ADT 13 at [39]. There have also been numerous decisions of this Tribunal, one of those my own in Alexander v Commissioner of State Revenue 2013 VCAT 868. In that decision at paragraph [12] I held that giving the principal place of residence its ordinary meaning is what an objective person would think as to whether someone was living there as their principal place of residence or not. In this particular instance, I first turn to the amount of time that the applicant spent at the premises. The applicant spent very little time at the premises. I was finally told by him that it was one to two days per week. From the water usage from 5 June onwards it can be seen that the applicant did not appear to spend any time at the premises whatsoever. From the electricity usage, his time at the premises from 5 June to 8 June 2010 was nothing and the water usage from January to April 2010was nothing.
2. I find that from 5 June 2010 onwards, the applicant did not reside at the property at all and I find that on the balance of probabilities, from 29 January to 28 April 2010 also the applicant did not reside at the property. It would be impossible to reside at the property without the use of those facilities and in any event the use of utilities was so minimal prior and after those dates that it would be very hard to accept that he lived there.
3. I note that there was a minimal amount of furniture in the property and utensils and I take that into account. I also take into account the applicant spent a lot of time eating and showering and living at his parents' place. In my view it is more likely that his parents' place was his principal place of residence. I note that the applicant did have a number of his personal addresses changed but I believe that more than likely has been done for the purpose of qualifying for the grant. In any event, it seems clear to me that the applicant has not occupied the property as his principal place of residence for the required six month period.
4. The second principle is consideration of whether a person has been residing or occupying the premises as their principal place of residence to be assessed objectively in light of the circumstances relating to the occupation of the dwelling. I have already dealt with most of these matters. In this case I cannot believe that an outsider would think that the applicant was living at the Frankston property.
5. The third matter is the intention of the person concerned gauged objectively is relevant but not determinative of the issue. In this matter in my view one can get a good idea of the applicant's intention by looking at his financial circumstances, what I have already mentioned. His financial circumstances were such that he could not afford to live at the property. The only way he could afford to own the property was an investment premises and the property being rented. He said to me that he could have had boarders in the premises. That may be so but that never happened.
6. Looking objectively at a situation where somebody cannot afford to live in premises which they own, they clearly cannot have an intention to reside in those premises. On the applicant's own evidence, he was at the property for the minimum amount of time required by s 12 of the Act and during that time in June he arranged for a lease to be signed and rent taken even before the 6 month period was out.
7. Judge Macnamara in the D'Amelio case, when referring to the need to occupy the premises for a period of 6 months stated as follows:

It is one thing to intend to occupy the premises as one's principal place of residence for an extended or indefinite period and to change one's mind or be forced by a change of circumstance. It is another thing to have an intention to connect oneself to the premises in some way for a period of 6 months and then irrevocably part with possession of them by putting in a tenant.

1. The latter is a situation which in my view has been established here and not the former. In this particular instance, in my view, the applicant never intended to connect with the premises. It was always his intention that he stay at the property to obtain the grant. It is most unfortunate that his mother was told she had a limited time to live during this period but in my view that pays little part in his intention. In my view he never had an intention to remain in the premises for a period of 6 months or reside in the property permanently.
2. Principle 4 required that for a person to occupy a home as his principal place of residence a person's occupation must have a degree of permanence to it. A connection to a place of residence of transient, temporary or contingent or passing nature is not sufficient. In my view at best the applicant occupation of the Frankston premises as a transient, temporary or contingent resident, if it was residence at all. In my view the evidence demonstrates that there was no occupancy of the property beyond a transient or temporary or contingent one of occupancy. This is similar to what Judge Macnamara found in D'Amelio.
3. Principle 5 states a short length of a person's residence while relevant is not determinative of the issue. A short period of occupation may still have the requisite degree of permanence, however in this particular instance there was no degree of permanence at all. In my view it was always the applicant's intention to move out of the property once the 6 months was up. I refer to what Deputy President Macnamara said in Rutco v Commissioner of Taxation 211 VCAT 2239 at 24 where he said "I am inclined to think in terms of the Farrington principles that someone who takes possession of premises merely for the purpose of meeting criteria 5 and leaves immediately after the 6 months has ticked over is someone who has taken up residence for a transient, temporary or contingent passing purpose, not for the permanent purpose of the Act". In my view the applicant has failed to show that he has taken up the residence for the purpose of residence and that was not his intention.
4. Principle 6 requires the reason for the person's departure from the home must be both reasonably and adequately explained when considered objectively in the light of the person's circumstances. The applicant said that he elected to move back to the family home because he was told that his mother was to die shortly of bowel cancer and he wanted to be close to her. That is most unfortunate and he has my sympathy. But nonetheless, in my view the applicant's departure from these premises was always planned. It was always planned to be immediately after the 6 month period was up.

1. Thus I conclude that the applicant did not occupy the property as his principal place of residence for a period of 6 months. He did not comply with criteria 5 of the Act (s.12(1)).
2. Having come to that conclusion I find insofar as the application concerns the repayment of the first home owners grant, the bonus and the boost payment, the applicant's action should fail. In regard to the issue of penalty I note that there has been only a $1,000 penalty charged. This is far less of 10% than what has been ordered in previous cases. I was told by Miss Neskovcin who appears for the respondent that the penalty is 5.9%. The applicant failed to notify the respondent pursuant to s.20 of the Act. In my view this is an appropriate penalty. It is very important that penalties be imposed for a deterrence to others. The breaches of this Act are difficult to detect and define and when they are found there should be a penalty that is sufficient to act as a deterrence. In my view this penalty of $1,000 is the minimum that should be applied. Therefore I will affirm the decision of the respondent in all respects.