Beavan v Commissioner of State Revenue [2001] NSWADT 224 (31 December 2001)

Last Updated: 31 December 2001

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Beavan -v- Commissioner of State Revenue [2001] NSWADT 224

PARTIES: APPLICANT

Brett Beavan

RESPONDENT

Commissioner of State Revenue

FILE NUMBERS: 013293

HEARING DATES: 14/12/2001

SUBMISSIONS CLOSED: 14/12/2001

DECISION DATE: 31/12/2001

BEFORE: Hennessy N (Deputy President)

LEGISLATION CITED: First Home Owners Grant Act 2000

CASES CITED:

APPLICATION: first home owners grant - approval of application

First Home Owners Grant Act - first home owners grant - approval of application

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: APPLICANT

In person

RESPONDENT REPRESENTATIVE: RESPONDENT

D Martin, agent

ORDERS: The Commissioner's decision not to approve the applicant's application for a first home owners grant is affirmed.

Reasons for Decision:

Introduction

1 On 3 December 2001 Mr Beaven lodged an application with the Tribunal requesting a review of a decision of the Chief Commissioner, Office of State Revenue (the Commissioner). The decision was not to approve his application under the First Home Owner Grant Scheme (FHOGS). The Commissioner refused the applicant's application because he did not meet a requirement of the First Home Owners Act 2000 (FHOG Act) that the contract for purchase of the property be made on or after 1 July 2000. Mr Beaven's contract was exchanged on 7 June 2001 and settlement took place on 7 July 2000.

2 On 1 August 2001, Mr Beaven wrote to the Commissioner objecting to his decision and seeking a review of that decision. On review, the Commissioner affirmed that Mr Beaven was not eligible for the grant.

3 With the consent of the parties, this matter was decided "on the papers" pursuant to s 76 of the Administrative Decisions Tribunal Act 1997 (ADT Act).

Relevant legislation

4 The FHOG Act requires an applicant to comply with certain eligibility criteria. Section 7(1)(a) states that:

(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.

(2) Despite subsection (1) (a), an applicant need not comply with the eligibility criteria to the extent the applicant is exempted from compliance by section 9 (2) or 12 (2) or both.

(3) Despite subsection (1) (b), a first home owner grant is payable before completion of the relevant eligible transaction, as authorised by section 20.

(4) Only one first home owner grant is payable for the same eligible transaction.

5 The exemptions in s 9(2) and s 12(2) relate to residency and citizenship and do not apply to the circumstances of this case.

6 An "eligible transaction" is defined in s 13(1)(a) to include "a contract made on or after 1 July 2000 for the purchase of a home in New South Wales." Section 13(4) defines the commencement date of an eligible transaction as "the date when the contract is made". Section 13(5) defines the completion date of an eligible transaction as the date the purchaser becomes entitled to possession of the home under the contract.

Applicant's submission

7 Mr Beaven submitted that the time should be calculated from the settlement date, not from the date contracts were exchanged. As settlement took place after 1 July 2000, he should be eligible for the grant. He argued that any of the parties involved in the purchase of a property have a "cooling down period" in which either party can be released from the contract. Therefore the contracts are not legally binding until the settlement date. Mr Beaven submitted that on the basis of this analysis he was not legally the home owner until the settlement date. Mr Beaven also quoted the Office of State Revenue fact sheet which states that payment of the grant will be made when the purchaser becomes entitled to possession of the home after settlement.

Respondent's submission

8 The respondent's submission was simply that Mr Beaven does not meet the eligibility requirements and therefore cannot be given the grant.

Reasons and decision

9 The FHOG Act differentiates between the commencement of an eligible transaction and the completion of an eligible transaction. The commencement date is the date the contract is made and the completion date is the date the purchaser becomes entitled to possession of the home under the contract. Two relevant requirements for eligibility for the grant under s 7 are that the transaction is an eligible transaction, and that the transaction has been completed. These are separate requirements under the FHOG Act. Not only must an applicant have entered into the contract on or after 1 July 2000, but the transaction must have been completed before the grant will be made.

10 The legislation which I have to interpret is clear and unambiguous. An "eligible transaction" is defined in s 13(1)(a) to include "a contract made on or after 1 July 2000 for the purchase of a home in New South Wales." In this case the contract was made before 1 July 2000 and is therefore not an eligible transaction. The requirement that the grant not be paid until the completion date when the purchaser becomes entitled to possession of the home, is a separate requirement under the legislation. It is not relevant that Mr Beaven is not the legal home owner until settlement.

11 I can appreciate that Mr Beaven feels that he has been treated unfairly in being denied the grant when his contract was made so soon before the eligible date. Nevertheless, parliament has legislated to provide a cut off date for eligible transactions and neither the Commissioner nor the Tribunal has any discretion to change that date or to give Mr Beaven the grant when he does not meet the eligibility criteria. The Tribunal's role is to apply the legislation as enacted by parliament. My interpretation of that legislation is that the applicant is not eligible for the grant. In those circumstances, the Tribunal has no choice but to affirm the Commissioner's decision not to give the grant to the applicant.

Orders

12 The Chief Commissioner's decision not to approve the applicant's application for a First Home Owners Grant is affirmed.