Powles & anor v Chief Commissioner of State Revenue [2006] NSWADT 156 (29 May 2006)

Last Updated: 29 May 2006

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Powles & anor v Chief Commissioner of State Revenue [2006] NSWADT 156


PARTIES: APPLICANTS
Brian Adrian Powles
Natalie Marie Powles
RESPONDENT
Chief Commissioner of State Revenue



FILE NUMBERS: 053090

HEARING DATES: 23/01/06

SUBMISSIONS CLOSED: 23/01/2006



DECISION DATE: 29/05/2006

BEFORE: Hole M - Judicial Member





LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
First Home Owners Grant Act 2000
Stamp Duties Act 1920

CASES CITED: Associated Provincial Picture Houses Ltd v Wednesday Corporation [1947] EWCA Civ 1; [1948] 1 KB 223
Bates v Chief Commissioner of State Revenue [2004] NSWADT 13
FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342
McKenzie v Chief Commissioner of State Revenue [2005] NSWADT 14
Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40; (1986) 162 CLR 24
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR

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: APPLICANTS
R A Powles, agent

RESPONDENT REPRESENTATIVE: RESPONDENT
S Benjamin, solicitor

ORDERS: 1. The decision of the Chief Commissioner of State Revenue to refuse to exercise the Chief Commissioner of State Revenue’s discretions in Section 12(1B) First Home Owner Grant Act 2000 or Section 14(7) First Home Owner Grant Act 2000 is confirmed
2. The Chief Commissioner of State Revenue complied with the requirements of Section 49(3) of the Administrative Decisions Tribunal Act 1997 by the letter dated 1 February 2005.


Reasons for Decision:

REASONS FOR DECISION

1 The applicants have applied for a review of the decision of the Chief Commissioner of State Revenue to refuse to grant the First Home Owner Grant ("the Grant") Application No 053090 and to refuse to refund the stamp duty paid on a contract where the First Home Plus stamp duty concession should have applied ("the Concession") Application No 056053..

The facts

2 On 30 June 2003 the applicants completed the purchase of a property ("the subject property") in Armidale having contracted to purchase the subject property on 24 May 2003 ("the commencement date of the eligible transaction"). The subject property was tenanted at that time and it was expected that the lease would cease on 14 November 2003; in fact the property was then re-let under a lease due to expire on 23 December 2004.

3 The applicants applied for the Grant on 22 October 2004 and at the same time, in the accompanying document, requested a refund of the stamp duty. They also requested that the requirement that they commence occupation within 12 months of the purchase be extended, although to an unspecified date.

4 The Chief Commissioner of State Revenue notified the applicants on 1 November 2004 that their application for the Grant had not been approved and that the request to extend the occupation period was considered insufficient to do so. The applicants received the notice dated 1 November 2004, they advised the Chief Commissioner of State Revenue that they had moved into the subject property, they objected to the determination of the Chief Commissioner of State Revenue and that in the event that their objection was upheld they wished to apply for a refund of the stamp duty paid on the contract on the basis that they were exempt as first home owners.

5 By letter dated 10 December 2004, Mr R Powles, the father of the applicant Brian Powles, notified the Chief Commissioner of State Revenue that he was assisting his son and daughter-in-law. Mr R Powles was authorised by his son and daughter-in-law to represent them as their agent at the Tribunal.

6 On 1 February 2005 the Chief Commissioner of State Revenue notified the applicants by letter that their objection to the decision regarding the Grant had been disallowed, and that the request to extend the period for residing was not approved.

7 The applicants, per Mr R Powles, forwarded a further letter to the Chief Commissioner of State Revenue dated 9 February 2005 referring to two statutory declarations in support of the objection previously forwarded and requesting a further review be given to the decision.

8 The application for the Grant sworn by the applicants although undated and forwarded to the Office of State Revenue under cover of letter dated 22 October 2004 includes within the declaration (amongst other statements) that: -

"An applicant will be residing in the home that is the subject of this application as their principal place of residents for a continuous period of 6 months commencing within 12 months of completion of the eligible transaction."

Legislation

9 First Home Owner Grant Act 2000

"Section 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.

(2) Despite subsection (1)(a), an applicant need not comply with the eligibility criteria to the extent that 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."
"Section 12 Criterion 5 – Residence requirement (Effective from 1 Jan. 2004)
(1) An applicant for a first homeowner 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 6 months.
(1A) However, if the Chief Commissioner is satisfied there are good reasons to do so, the Chief Commissioner may:

(a) approve a shorter period, or
(b) exempt the applicant from the requirement to comply with subsection(1).

(1B) The period of occupation required under subsection(1), or the shorter period approved under subsection (1A)(a), must start 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."
"Section 12 – Criterion 5 – Residence requirement (Provisions relevant until 31 Dec 2003)
(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."
"Section 14 – Application for grant
(1) An application for a first homeowner grant is to be made to the Chief Commissioner or a financial institution or other person with whom the Chief Commissioner has made an administration agreement.
(2) An application:

(a) must be in a form approved by the Chief Commissioner, and
(b) must contain the information required by the Chief Commissioner.

(3) An applicant must provide the Chief Commissioner with any further information the Chief Commissioner requires to decide the application.
(4) Information provided by an applicant in or in relation to an application must, if the Chief Commissioner so requires, be verified by statutory declaration or supported by other evidence required by the Chief Commissioner.
(5) An application may only be made within a period (the "application period"):

(a) commencing on the commencement date of the eligible transaction to which the application relates, and
(b) ending 12 months after the completion of the eligible transaction to which the application relates.

(6) However, the Chief Commissioner has a discretion to allow an application before or after the application period.
(7) An applicant may, with the Chief Commissioner’s consent, amend an application."
"Section 24 – Notification of decision
(1) When the Chief Commissioner decides to refuse an application or to vary or reverse an earlier decision on an application, the Chief Commissioner must give the applicant notice of the decision and must state in the notice the reasons for the decision.
(2) If the decision is to authorise the payment of a first home owner grant with or without conditions, the payment of the grant is sufficient notice of the decision."

Applicants’ submissions

10 The agent of the applicants made comprehensive submissions relating particularly to the refusal of the Chief Commissioner of State Revenue to extend the period to enable satisfaction of the residency criteria and consequently to approve the Grant to the applicants.

11 The applicants had planned to move to Armidale, the former home town of Natalie Powles and to live in the subject property. Although there was a tenant in the property at the time of purchase (30 June 2003) and the lease was not due to expire until 14 November 2003. Subsequent to the purchase the applicants’ plans to move were thwarted by work commitments in Sydney. They felt compelled to re-let the subject property for a further period to 23 December 2004. Ultimately they decided to move to Armidale in May 2004 as there was an opportunity for them to obtain work there; they then lived in rented accommodation until the tenants moved out of the subject property and the applicants moved in on 10 December 2004. They immediately forwarded a letter to the respondent on that day with a notice of objection to the refusal of the Chief Commissioner to extend the occupation period beyond the statutory 12 months.

12 The notice of objection referred to in paragraph 11 drew attention to, amongst other things,

the demonstrable bona fide intention of the applicants when they purchased the subject property to acquire and ultimately occupy the subject property as their principal place of residence, and that as a consequence of the lease and the further lease to 23 December 2004 they were unable to occupy the subject property prior to the expiry of the 12 months period from the commencement date of the eligible transaction,
the expressed intention of the Legislature in enacting the First Home Owner Grant Act to assist people in the applicants’ situation,
the efforts of the applicants to obtain possession of the subject property after the application for the Grant was submitted on 22 October 2004,
the perceived unfairness, and unreasonableness of the refusal to exercise the statutory discretion, and
there was a denial of natural justice.

13 Documentary evidence by way of statutory declarations, from the parents of Natalie Powles and the mother of Brian Powles, were submitted as corroborating the stated intention of the applicants to permanently reside in the subject property as soon as they could obtain suitable employment in Armidale or if and when work opportunities presented in Armidale.

14 Brian Powles gave evidence in person, he described his education and experience, having trained in the Hospitality sector and averred to his and his wife’s wish to purchase a property in Armidale that they could afford. At the time of the purchase he and his wife were employed in Sydney and they were concerned that there was little opportunity in Armidale for employment. He and his wife wanted to start their own business in Armidale and eventually at the beginning of 2004 they leased premises for a restaurant business.

15 The applicants had requested the respondent, as the administrator making the reviewable decision, by letter dated 9 February 2005 to provide a full statement of the findings on material questions of fact, the respondent’s understanding of the applicable law and the reasoning processes as required by Section 49(3) of the Administrative Decisions Tribunal Act 1997 ("ADT Act").

16 Further written submissions were made on behalf of the applicants which were in response to the respondent’s submissions. These related to the Chief Commissioner’s statutory discretions, in particular, for completeness these submissions are set out hereunder: -

"... There is a body of law which requires that discretions be exercised fairly. In addition their exercise must have regard to the particular circumstances of the case. The basic principle is one of rationality in the exercise of statutory powers; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 per Kirby J at [139] to [170].
The decision of the Commissioner to reject the application, as supported by the reasons provided up to 21 June 2005, is irrational. It fails to take account of the overarching purpose of the First Home Owner’s Grant Act 2000 (NSW) as set out in the Long Title to that Act – ‘An Act to encourage and assist home ownership, and to offset the effect of the Goods and Services Tax on the acquisition of a first home’.
In the absence of specific factors for the Commissioner to consider in exercising this discretion, the discretion ought to have been exercised in accordance with the disclosed statutory intent; the court will not ordinarily regard a statutory discretion the exercise of which will affect the rights of a citizen as absolute and unfettered. If Parliament intends to make such a discretion absolute and unfettered it should do so by a very plain expression of its intent. The general rule is that the extent of the discretionary power is to be ascertained by reference to the scope and purpose of the statutory enactment: FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342 at 368.
In the statement of reasons, the Commissioner has made no reference to the objectives of the First Home Owner’s Grant 2000. Despite the incantations of fairness, the exercise of the discretion must be shaped by the instrument conferring that discretion. But it has been ignored. The evidence provided by the applicants to the Commissioner supporting the clear intention of the applicants to reside permanently in the Mann Street property has not been the subject of consideration in the statement of reasons. Indeed, the entire basis of reasoning of the Commissioner rests on a quote taken out of context. The Commissioner argues (in paragraph 15) that ‘our plans to move to Armidale were thwarted by existing commitments in Sydney’ does not reveal the full story. In the application, the next clause must be read as a corollary – ‘Our plans to move to Armidale were thwarted by existing work commitments in Sydney and the fact that late last year there were no suitable work opportunities available in Armidale’. The clear statement here (which is supported by significant other evidence provided by the Applicant) is that the occupation of the house was financially impossible, not that active choices were being made by the Applicants. The problem was rather that it was financially impossible at that time to act on the choice to move to Armidale which had already been made.
That the Applicants did not seek to obtain the grant until this situation was rectified is a clear sign of their good faith. Yet it is a factor ignored in the decision making of the Commissioner. The Commissioner’s reasoning discloses no substantive analysis of the nature or purpose of the discretion which the Commissioner possesses. It involves a bland statement of principle and reliance on a single isolated comment taken out of context (the entire sentence was not even quoted!). The Commissioner’s reasons rely on the notion of ‘personal choice’ as being of relevance, without any justification as to why this is relevant to the exercise of the discretion and little appreciation of the fact that personal choice was simply not available in this case – the situation was in fact one of financial impossibility.
The Commissioner’s reasoning is erroneous in several other respects. At paragraph [20], the Commissioner says ‘Given the circumstances of this case, the Chief Commissioner’s contention is that the applicants did not meet two of the key criteria under the Scheme, which are statutory requirements’. This is clearly accepted. However, if this contention were accepted then this would amount to writing the discretions in ss 12 and 14 out of the legislation. The only relevant question is the proper exercise of those discretions.
At paragraph [21], the Chief Commissioner states: ‘The intention of the grant was to offset the impact of the GST on the purchase of a person’s first home to be used as that person’s principal place of residence. It is not intended to help purchase a property to be used as an investment property, even if this were to be an unintentional outcome.’ This is simply incorrect. The clear intention of the grant is to ‘encourage and assist home ownership’. The statement made by Judicial Member Higgins in Bates v Chief Commissioner of State Revenue [2004] NSWADT 13 is to this effect: ‘that discretion [referring to the discretion to require repayment] must be exercised in accordance with the policy and purposes of the Act. As mentioned above, that policy and purpose is to provide first home owners with assistance in purchasing their first home.’ This has been the entire focus of the Applicant’s actions throughout the relevant periods. This is supported by the fact that the grant was not sought until residential use became possible. There was clearly no intention to seek government support for owning an investment property.
At paragraph [22], the Chief Commissioner states ‘The law is also not meant to assist those who cannot assist themselves, that is, applying within the permitted time and taking up occupation and using the purchased property as their principal place of residence.’ Again, this violates the statutory framework within which the Chief Commissioner is required to make a determination. What is the point of the discretions but to assist those who cannot assist themselves by complying with the strict time limits set out in the Act? On the Chief Commissioner’s analysis, there could be no case ever made for the exercise of the discretion.
It is contended that these reasons disclose a failure to understand the nature and purpose of the discretion to be exercised. There is no logical basis for that reasoning which applies directly to the Applicant’s case – the reasoning fails to deal with the whole evidence provided and simply draws a conclusion from part of a sentence. The reasoning that explains the nature and exercise of the discretion demonstrates a limited and dysfunctional understanding of the discretion and the purposes of the legislation.
For these reasons, it is argued that the Commissioner’s discretion has been unlawfully exercised as it fails to have fundamental regard to the relevant considerations posed by the statutory framework; Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40; (1986) 162 CLR 24. The approach taken by the Commissioner is also irrational in its treatment of the evidence provided by the Applicants and the approach adopted toward the construction of the discretion (Applicant S20).
Finally, it is submitted that the conclusion reached by the Commissioner is so perverse that no reasonable person could reach that conclusion; Associated Provincial Picture Houses Ltd v Wednesday Corporation [1947] EWCA Civ 1; [1948] 1 KB 223."

17 The applicants’ agent also made comprehensive submissions in respect of the decision in McKenzie v Chief Commissioner of State Revenue [2005] NSWADT 14, those submissions concluded that as the discretion which was considered in McKenzie was as set out in Section 20(1)(b) and did not touch on the Section 12(1B) discretion the case was not relevant.

18 The applicants’ agent submitted that the late application by the applicants for the Grant disclosed their good faith as they did not make it until they were qualified to do so albeit almost 5 months from the date of the settlement of the purchase.

19 The applicants’ agent drew attention to the discretion provided in Section14(6).

Respondent’s submissions

20 The respondent’s representative made written submissions, cross examined Brian Powles and made oral submissions to the Tribunal. The respondent’s written submissions in the main relied on the applicable legislation, the information set out in the respondent’s letter dated 1 February 2005 forwarded to the applicants and the facts as described by the applicants.

21 The residence requirement, Criteria 5 Section 12, as relevant between the period from the date of the contract to purchase the subject property to 31 December 2003, and, that requirement as effective from 1 January 2004, both required that the applicants must occupy the property at a date within 12 months or starting within 12 months after completion of the eligible transaction or a longer period approved by the Chief Commissioner.

22 The applicants applied out of time and thus the Chief Commissioner was required to consider using the Chief Commissioner’s discretionary power to extend the time requirement to a longer period. The Chief Commissioner had considered the circumstances in this matter and had not decided to exercise the discretion. The Chief Commissioner considered that there was a duty to be fair and candid and that the exercise of the discretionary power should not be arbitrary, capricious or biased by resentment, prejudice or personal dislike. The respondent’s representative submitted that:

The Chief Commissioner and those delegated by him are fully aware that discretionary power is to be used in favour of the applicants where special circumstances so warrant and such power should be used only to pursue the purposes for which the power has been conferred in the first place.
Such powers should be used without bias and observed objectively and impartially, taking into account only factors relevant to the particular case.
The delegates of the Chief Commissioner have observed the principle of equality before the law by avoiding unfair discrimination, maintained a proper balance between any adverse effects which its decision may have on the rights, liberties or interest of persons and any general administrative guidelines in a consistent manner while at the same time taking account of the particular circumstances of each case.

23 The Chief Commissioner had taken into account that the applicants had purchased the subject property with the knowledge that the then existing lease would not expire until 14 November 2003. That the applicants had chosen to re-let the subject property to 23 December 2004. That there were circumstances, which the applicants had taken into consideration, when they re-let the subject property to a date well past the 12 months period which were in their control. That the applicants had received the benefit of a rental return on the subject property for approximately 18 months until they were ready to reside in the subject property. That the applicants’ choices in respect of their own work commitments were in the normal course of day to day activities and could not constitute exceptional circumstances which would warrant the exercise of discretionary powers.

24 The necessity to exercise the discretionary powers within the legislation was considered by delegated officers within the Office of State Revenue. As the circumstance described by the applications does not constitute unforeseen and/or unavoidable, but were of personal choice, the delegated officer decided there is no merit in exercising discretionary powers in respect of two issues. They are: (a) the late application for the grant (out of time by nearly four months) and (b) the failure to occupy the property as their principal place of residence (out of time by six months).

25 The respondent’s representative cross examined Brian Powles, who impressed the Tribunal as an honest reliable witness. Brian Powles responded to the questions put to him relating to his knowledge of the First Home Owner Grant Scheme that he had learned about it in: "2001 or 2002".

26 The respondent’s representative referred also to the decision in Bates and to the comments of Judicial Member Higgins at paragraph 45:

"...policy and purpose is to provide first home owners with assistance in purchasing their first home and the eligibility for such assistance is expressly stated to include a requirement that the applicant occupies the property the subject of the grant as his or her principal place of residence within twelve months of a grant. That is, the Act does not provide assistance where an applicant fails to occupy the premises within the requisite period and rents out that property notwithstanding the applicant’s intention to ultimately make the property his or her permanent place of residence."

Reasons for decision

27 Insofar as the decision of the Chief Commissioner is concerned relating to the refusal to exercise the discretion in Section 12(1B) the evidence has disclosed the following facts:

(a) the purchase of the subject property was settled on 30 June 2003 following exchange of contracts on 24 May 2003;
(b) at the time of purchase there was an existing lease due to expire on 14 November 2003;
(c) the applicants lived and worked in Sydney at the time of the purchase;
(d) the applicants intended to reside in the subject property as their principal place of residence, at some time in the future, after settlement of the purchase;
(e) the applicants were renting their residential premises in Sydney and after settlement of the purchase they were receiving rental from the subject property;
(f) the applicants’ work commitments in Sydney allowed them to service the mortgage on the subject property;
(g) the applicants re-let the property, after expiry of the initial lease, for a period to expire on 23 December 2004;
(h) an opportunity arose in May 2004 for the applicants to commence a business in Armidale;
(i) as the subject property was let through to 23 December 2004, they rented residential premises in Armidale; and
(j) on an undisclosed date the applicants signed a declaration attached to an application for First Home Owner Grant which was submitted to the Chief Commissioner of State Revenue on 22 October 2004.

28 The letter dated 1 February 2005 forwarded by the Chief Commissioner of State Revenue to the applicants’ agent briefly set out the following comments, which were considered to sufficiently address the legislative requirements of Section 49(3) of the ADT Act according to the letter dated 3 March 2005 forwarded to the applicants’ agent:

"To be eligible for a grant under the First Home Owner Grant Act 2000 (the Act), an applicant must occupy a residential property as the applicant’s principal place of residence within 12 months of purchasing the property. In addition, the Act provides that an application for a grant may only be made within the application period which the legislation defines as ending 12 months after the completion of the eligible transaction to which the application relates. Because Brian and Natalie Powles did not lodge their application within the application period nor occupy the subject property as their principal place of residence within the required time we are unable to offer them a grant.
With respect to their request for an extension of the twelve months period for residency we are unable to approve an extension. Brian and Natalie Powles chose to purchase the property they selected and they were fully aware of the tenancy which was due to expire in November 2003. This was something very much within their control. They derived the benefit of a rental return for some 18 months after purchase until they were ready to reside in the property. The first home owner scheme is not intended for such situations. If we were to allow a grant under these circumstances it would be unfair to all those other first home buyers who purchased and moved into their home shortly after purchase and unfair to those first home owners who were denied a grant because they moved into their homes after the twelve months residency period but had left their property vacant in the interim."

29 The Chief Commissioner of State Revenue has a duty to exercise the discretion having regard to the particular circumstances of the case. The material that was available to the Chief Commissioner of State Revenue at the time that the circumstances of the case were considered included all the matters as set out in paragraph 27(a) – (j) above. The information provided in the letter dated 1 February 2005 in paragraph 28 does not disclose that all of the items (a) – (j) had been considered. However, the items that are referred to disclose that having regard to those items the circumstances are not sufficiently exceptional to warrant the exercise of the discretions to allow the application after the application period (Section 14(6)) or to approve a longer period as to when the applicants’ must occupy the home.

30 The applicants were aware of the First Home Owner Grant Scheme in 2001/2002 and have had the benefit of able representation by their agent who practised as a solicitor prior to retirement.

31 It is clear that the applicants did intend to reside in the subject property as their principal place of residence at some time in the future after it was purchased. As at November 2003 they had considered their options and re-let the subject property through to 23 December 2004. At the time that they re-let the property for that period of time they had made the decision, after considerable opportunity for advice and guidance, to remain living in another residence (or residences) other than the subject property until well after the 12 months period which had been selected by the legislature as a suitable period for the large majority of applicants to organise their affairs. The discretion built into the Act, to be fair and reasonable to all applicants (disadvantaged or otherwise) must be exercised bearing in mind all the implied duties and only exercised where the particular circumstances of the case warrant it.

32 The scope and purpose of the Act is expressed to be:

"...to encourage and assist home ownership, and to offset the effect of the Goods and Services Tax on the acquisition of a first home, by establishing a scheme for the payment of grants to first home owners; to amend the Stamp Duties Act 1920 to exempt such grants from financial institutions duty; and for other purposes."

The circumstances, in this case taking into account the scope and purpose of the Act, do not warrant exercise of either discretion.

33 The comprehensive submissions of the applicants’ agent have been carefully considered, especially in relation to discretionary powers provided in legislation. However, having regard to the purpose and scope of the legislation, these submissions are not persuasive.

34 The Act establishes a scheme for the payment of grants to first home owners. A finite period for application and also for occupation is prescribed with provision for discretionary extensions being available; those discretionary extensions must be exercised only in exceptional circumstances. The circumstances in this case are not exceptional, rather the decision of the applicants to defer going into occupation outside the time prescribed was made with regard to their financial stability.

ORDER

1. The decision of the Chief Commissioner of State Revenue to refuse to exercise the Chief Commissioner of State Revenue’s discretions in Section 12(1B) First Home Owner Grant Act 2000 of Section 14(7) First Home Owner Grant Act 2000 is confirmed.

2. The Chief Commissioner of State Revenue complied with the requirements of Section 49(3) of the Administrative Decisions Tribunal Act 1997 by the letter dated 1 February 2005.