DY v Chief Commissioner of State Revenue [2002] NSWADT 259 (11 December 2002)

Last Updated: 3 March 2003

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: DY -v- Chief Commissioner of State Revenue [2002] NSWADT 259

PARTIES: APPLICANT

DY

RESPONDENT

Chief Commissioner of State Revenue

FILE NUMBERS: 023203

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 18-10-2002

DECISION DATE: 11-12-2002

BEFORE: Hennessy N - Magistrate (Deputy President)

LEGISLATION CITED: First Home Owners Grant Act 2000

Administrative Decisions Tribunal Act 1997

CASES CITED:

APPLICATION: first home owners grant - reversal of original decision

First Home Owners Grant Act - first home owners grant - reversal of original decision

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: APPLICANT

In person

RESPONDENT REPRESENTATIVE: RESPONDENT

D Martin, agent

ORDERS: 1. The decision of the Chief Commissioner to reverse the original decision, under which an amount was paid to the applicants, is affirmed.

Reasons for Decision:

1 On 10 September 2002, DY and his partner, (the applicants) lodged an application with the Tribunal requesting a review of a decision of the Chief Commissioner of State Revenue (Chief Commissioner). The decision was to reverse a previous decision that the applicants were entitled to a grant of $7,000 under the First Home Owners Grant Scheme (FHOGS). The Chief Commissioner reversed his decision because the applicants had not moved into their home within 12 months after completion of the contract or a longer period approved by the Chief Commissioner.

2 The names of the applicants have been anonymised in these reasons because the decision contains sensitive personal information about one of the applicants.

3 On 15 March 2002, the applicants objected to the Chief Commissioner's decision. On review, the Chief Commissioner confirmed that the applicants were not entitled to the grant and should repay the amount of $7,000.

4 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).

Jurisdiction

5 Pursuant to s 23 of the First Home Owner Grant Act 2000 (FHOG Act), the Chief Commissioner has power to vary or reverse an earlier decision. That provision states that:

(1) If the Chief Commissioner decides an application, and is later satisfied (independently of an objection under this Act) that the decision is incorrect, the Chief Commissioner may vary or reverse the decision.

(2) A decision cannot be varied or reversed under this section more than 5 years after it was made.

6 The FHOG Act authorises the applicant to object to a decision to reverse an earlier decision. Section 25(1) states that:

(1) An applicant who is dissatisfied with the Chief Commissioner's decision on the application (including a decision to reverse or vary an earlier decision) may lodge a written objection with the Chief Commissioner.

7 The FHOG Act authorises the applicants to apply to this Tribunal for a review of the Chief Commissioner's decision. Section 28 states, in part, that:

(1) An objector may apply to the Administrative Decisions Tribunal for a review of the decision (the original decision) to which the objection was made if:

(a) the objector is dissatisfied with the Chief Commissioner's determination of the objection.

Relevant Legislation

8 The FHOG Act requires an applicant to comply with certain eligibility criteria. One criterion is the "residence requirement." Section 12 states that:

(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 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 applicant or applicants are exempted from compliance with the residence requirement.

9 The FHOG Act authorises the Chief Commissioner to make payments in anticipation of compliance with the residence requirement. Section 20 relevantly states that:

(1) The Chief Commissioner may authorise payment of a first home owner grant:

(a) before completion of the relevant eligible transaction, if the Chief Commissioner is satisfied that it is appropriate to do so in particular circumstances, or

(b) in anticipation of compliance with the residence requirement, if the Chief Commissioner is satisfied that each applicant who is required to comply, but has not yet complied, with the residence requirement, intends to occupy the home as his or her principal place of residence within 12 months after completion of the eligible transaction or a longer period allowed by the Chief Commissioner,

or both.

(2) . . . .

(3) If a first home owner grant is paid in anticipation of compliance with the residence requirement, the payment is made on condition that, if the residence requirement is not complied with, the applicant must within 14 days after the end of the period allowed for compliance:

(a) give written notice of that fact to the Chief Commissioner, and

(b) repay the amount of the grant.

(4) A person who fails to comply with the condition prescribed by this section is guilty of an offence.

Maximum penalty (subsection (4)): 50 penalty units.

10 The FHOG Act authorises the Chief Commissioner to require the applicant to repay the amount of the grant if the decision to pay the grant is reversed. Section 45 states that:

(1) The Chief Commissioner may, by written notice, require an applicant (or former applicant) for a first home owner grant to repay an amount paid on the application if:

(a) the amount was paid in error, or

(b) the Chief Commissioner reverses the decision under which the amount was paid for any other reason.

11 Section 46 of the FHOG Act authorises the Chief Commissioner to recover any amount an applicant is required to repay under the conditions of the grant.

Issue and onus

12 The issue in this case is whether the Chief Commissioner made the correct and preferable decision in reversing the decision to approve the First Home Owner Grant. (See s 63 Administrative Decisions Tribunal Act 1997). Under s 28(3) of the FHOG Act, the applicants have the onus of proving their case in an application for review.

Evidence

13 Early in 2001, the applicants purchased a property and lodged an application for a grant of $7,000 under the FHOG Act. The grant was paid in advance subject to compliance with the residence requirement set out in s 20(1)(b) of the FHOG Act. That requirement is that the applicants occupy the home to which the application relates as their principal place of residence within 12 months after completion of the eligible transaction. As the transaction occurred on 8 February 2001, occupation of the home was required by 8 February 2002.

14 Soon after the contracts were exchanged DY's partner found that she was pregnant. This was a great surprise to her because she has a medical condition that affects fertility. DY's partner took maternity leave and found that living on one income prevented her and her partner from moving into the home. On 29 January 2002, DY's partner applied for an extension to the time allowed for her and her partner to move into the property. The Chief Commissioner granted an extension until 31 March 2002, but according to DY's partner, it was not possible for her and her partner to meet that deadline. On 15 March 2002, the applicants lodged an objection to the Chief Commissioner's determination to reverse the previous decision that the applicants were entitled to a grant of $7,000.

Applicants' submission

15 The applicants submitted that they had intended to move into the property within the twelve month period but due to the unexpected birth of their first child, they were not in a financial position to do so. DY's partner stated in a letter dated 15 March 2002 that she hoped to increase the number of days she was working by the middle of the year. Although the applicants stated in the same letter that they hoped to move in "later in the year" they have not done so.

Respondent's submission

16 The Chief Commissioner relied on section 12(1) of the FHOG Act. That provision states, in part, that "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 Chief Commissioner". The Chief Commissioner quoted Business Rule 2.2 as providing some guidance in exercising the discretion provided by s 12(1). That Rule states that:

The circumstances under which the period for occupation of a home can be increased beyond 12 months include:

· interstate/overseas employment;

· hospitalisation;

· tending to sick relatives; or

· any other unforseen circumstance which prevents occupation within 12 months.

Provided the above circumstances exist, the period for compliance with the residence requirement can be extended at any time up to 12 months after the completion of the transaction.

17 In the view of the Chief Commissioner, the applicants do not fall within any of these categories and "financial reasons" are not considered to constitute an unforseen circumstance.

Reasons and decision

18 The decision the Tribunal has jurisdiction to review is the Chief Commissioner's decision to reverse the initial decision under which the $7,000 grant was paid. The Chief Commissioner's decision not to allow a further period (beyond the 2 months already allowed) for the applicants to occupy the home, is not a decision that the Tribunal has jurisdiction to review. In this case, the grant was paid in anticipation of compliance with the residence requirement. Pursuant to s 20(3), the payment is made on condition that if the residence requirement (or any longer period granted by the Commissioner) is not complied with, then the first home owner must repay the amount of the grant. The Chief Commissioner has the power to require an applicant to repay the grant if the Chief Commissioner reverses the decision under which the amount was paid. The Chief Commissioner did reverse the decision because he was satisfied that the decision was incorrect.

19 Once the residence requirement was not complied with, and no longer period had been allowed by the Chief Commissioner, then the original decision could not stand. (See s 23(1) of the FHOG Act.) Consequently, the decision of the Chief Commissioner to reverse the original decision was the correct and preferable decision. This Tribunal has no jurisdiction to review the Commissioner's decision to fail to allow a longer period than 2 months for the applicants to occupy the home. The decision of the Chief Commissioner to reverse the original decision, under which an amount was paid to the applicants, is affirmed.