14 March 2024

The Tribunal affirmed the decision under review.

The Tribunal found that the applicants did not meet the eligibility criteria for the HomeBuilder Grant (“HBG”) for the following reasons:

• Section 6A of the First Home and Housing Construction Grants Act 2000 provides that the HBG may only be paid to applicants who meet the eligibility criteria as set out in HBG Guidelines published by the Commissioner of State Taxation on the RevenueSA website (the “Guidelines”).
• Under the Guidelines, it is a requirement of “new build” transactions that building of the home commenced within 18 months after signing the building contract. Per the Guidelines, building is taken to commence “when site works including excavation for the approved building works to the top of the base level is complete.”
• The Tribunal was satisfied on the evidence that excavation to the top of the base level was completed within the required 18-month period. The builder’s oral evidence to that effect was not challenged in cross examination.
• The words ‘for the approved building works’ must, in their context mean the necessary approvals under the Planning Development and Infrastructure Act 2016 for the house and not simply any excavation work that might have been authorised as part of the land division approval. That is, even if the builder had, under the subdivision approval, approval for a form of building work (excavating land) that was preparatory to building the house, the phrase, in context, is referring to approval to construct the house. That approval was not in existence during the 18-month window.

HOMEBUILDER GRANT – Commencement of construction, approved building works, excavation, base level

Decision not published in this case.

24 October 2023

The Tribunal affirmed the decision under review.

The Tribunal found that the applicant did not meet the eligibility criteria for the HomeBuilder Grant (“HBG”) for the following reasons:

• In September 2020, the applicant signed two contracts, being a contract to purchase and a contract to build, with respect to a home to be constructed.
• The foundation for the applicant’s home had previously been laid in September 2018, as part of a single foundation that four townhouses would eventually share.
• The HBG Guidelines published by the Commissioner of State Taxation are legally binding when it comes to eligibility for the HBG. It is clear from section 6A of the First Home and Housing Construction Grants Act 2000 that the HBG may only be paid to applicants who meet the eligibility criteria as set out in the Guidelines.
• In the circumstances, which did not fit neatly within the HBG eligibility criteria, the applicant’s transaction was best characterised as a “new build”.
• In accordance with the HBG Guidelines (as they existed at the relevant time), it was a requirement of “new build” transactions that building of the home commenced within three months after signing the building contract. Per the Guidelines, building is taken to commence “when site works including excavation for the approved building works to the top of the base level is complete.”
• As commencement of construction of the applicant’s home occurred prior to the signing of his build contract, he did not satisfy the HBG Guidelines.
• Although sympathetic to the applicant’s circumstances, given its view that his build project was strongly analogous to other eligible projects, the Tribunal recognised that eligibility for schemes such as the HBG must be precisely defined, and that this inevitably involves some recipients being included and others excluded depending on how and where the eligibility ‘line’ is drawn.

HOMEBUILDER GRANT – Guidelines, “new build”, commencement of construction

Decision not published in this case.

5 July 2023

The Tribunal affirms the decisions under review.

The Tribunal found that the applicants do not satisfy the criterion that there be an “eligible contract” for the purposes of the HomeBuilder Grant (the “HBG”) for the following reasons:

• The question to determine was whether the applicants (i.e. Mr Drew and Mrs Alannah Prestwich) entered into an “eligible contract” for the purposes of the HBG – that is, a contract for substantial renovations to their home entered into between 4 June 2020 and 31 March 2021.
• There was a clear difference between the December 2020 contract and the June 2022 contract in respect of the costs of the building work.
• On application of established principles of contractual interpretation (including, importantly, ascertaining the objective intention of the parties), the parties no longer intended to be bound by the December 2020 contract and, instead, intended that their legal relationship would be regulated only by the June 2022 contract.  The primary reason for this finding was that the 2020 contract did not include a “rise and fall” clause which allowed the Builder to pass on any increase in price of the building materials.
• The June 2022 contract was not supplementary to the December 2020 contract but supplanted it.
• The applicants did not enter into an eligible contract between 4 June 2020 and 31 March 2021, and were ineligible for the HBG.
• In the circumstances, the correct or preferable decision is to affirm the decision under review.

HOMEBUILDER GRANT – Eligible contract

Prestwich & Anor v Treasurer for the State of South Australia [2023] SACAT 56 (5 July 2023)

5 April 2023

The Tribunal affirms the decisions under review.

The reason the applicant’s HomeBuilder Grant (“HBG”) application was refused was because it was concluded that she did not meet one of the essential eligibility criteria, namely that she be an Australian citizen at the time she lodged her application. As that was the only reason the applicant’s HBG application was rejected, it follows that the scope of the dispute between the parties is very narrow. The only issue before the Tribunal is whether the applicant met the citizenship requirement at the relevant time.

The Tribunal found that the applicant was not an Australian citizen at the time she lodged her HBG application and as such did not meet the applicable eligibility criteria, which are consistent with the National Partnership Agreement on HomeBuilder. It is regrettable this was not identified earlier, and the applicant understandably relied on the indication she was initially given that her application was likely to be approved. However, that does not alter the fact she did not meet the citizenship criterion and, as the decision to reject her application was therefore correct, I am obliged to affirm it.

HOMEBUILDER GRANT – Australian citizen

Simmonette v Treasurer for the State of South Australia [2023] SACAT 33

29 December 2022

The Tribunal affirms the decisions under review.

The applicants sought review of decisions that they were both were ineligible for the HomeBuilder Grant (‘HBG’) pursuant to section 6A of the First Home and Housing Construction Grants Act 2000. This was on the basis that neither of the applications met the criteria for a HBG under either the “knock down and rebuild” and “new build” categories. The applicants jointly submitted that, although the house on the subdivided property was demolished before the HBG scheme began, they understood they met the requirements for a “knock down and rebuild” HBG as the guidelines and FAQ they relied upon did not provide demolition date requirements.

The respondents submitted that, regardless of the lack of date of demolition in the original guidelines, neither applicant could come within the “knock down and rebuild” category as the land was already vacant at the time of their applications. They further submitted that both applicants were ineligible for a new build HBG as the market value of each of their respective properties and build contracts exceeded the cap of $750,000.

The Tribunal held, affirming the decisions under review:

• The ordinary meaning of the guidelines is that eligibility for the “knock down and rebuild” HBG is dependent on demolition occurring on or after the commencement of the HBG scheme;
• Given the circumstances, the only possible conclusion is that the applicants come within the “new build category”; and
• It is the correct and preferable decision that the applicants are ineligible for either HBG category.

HOMEBUILDER GRANT – “knock down and rebuild” and “new build”

Deo & Anor v Treasurer for the State of South Australia & Anor [2022] SACAT

23 June 2020

The Tribunal upheld the review and set aside the decision.

The Tribunal upheld the review and set aside the decision of the Commissioner of State Taxation and the Treasurer to require repayment of the First Home Owner Grant (“FHOG”) plus a penalty equivalent to 25% of the FHOG on the basis that the applicant did not occupy the relevant property (the “Property”) as his principal place of residence for a continuous period of at least 6 months.

In finding that the applicant satisfied the requirements of section 12(1) of the First Home and Housing Construction Grants Act 2000 by occupying the Property as his principal place of residence for a continuous period of at least 6 months, the Tribunal made the following observations:

1. Caution is needed in comparing different decisions because different decisions involve different facts and different findings of credit. Caution is also needed in looking at other decisions in a way that detracts focus from the statutory language. The question is whether the applicant occupied the Property as his principal place of residence for at least 6 months. It is important not to substitute factual findings from other cases as a substitute for the statutory test. Different individual facts may be given different weight in different cases.
2. The applicant did not simply stay for 6 months but for about 18, and then moved because of a change in his financial position.
3. I do not find that the applicant stayed at the Property for 18 months only for the purpose of satisfying the FHOG eligibility period of 6 months. I accept the applicant’s decision to move out was due to a change in financial circumstances because of the costly dispute with the neighbour as opposed to improperly obtaining a FHOG for which he was waiting until the first opportunity to rent the Property out.

FIRST HOME OWNER GRANT – residence requirement – principal place of residence

Acitino v Commissioner of State Taxation & Anor [2020] SACAT 32

28 November 2019

The Tribunal affirmed the decision under review.

The Tribunal affirmed the decisions of the Commissioner of State Taxation and the Treasurer to require repayment of the First Home Owner Grant (“FHOG”) plus a penalty equivalent to 25% of the FHOG on the basis that the applicant did not occupy the relevant property (the “Property”) as her principal place of residence for a continuous period of at least 6 months.

The Tribunal adopted the analysis set out by the Tribunal in the reasons for decision in the matter of Marinis and Treasurer for the State of South Australia and the Commissioner of State Taxation (2017/SA002340), including the principles set out in Chief Commissioner of State Revenue v Ferrington [2004] NSWADTAP 41, and noted the following:

1. The ordinary meaning of principal place of residence connotes the place where a person spends most of their time, conducting their general activities of daily living, and understood by others to be “the home” of the person.  I am satisfied that in this matter this would not be the way in which the applicant’s occupation of the Property would be viewed by others. I am satisfied that the applicant did not conduct her general activities of daily living (eating, showering, socialising) there, and in my view it is likely others would have concluded from her activities that her home was with her partner with whom she spent most of her non-sleeping, non-working, time, at the premises they jointly owned (that is, the Broadview property).
2. An objective assessment is necessary in the light of the circumstances relating to the actual occupation of the dwelling. I am satisfied that any objective assessment of the circumstances of the applicant’s occupation of the Property would conclude she did not occupy it as her principal place of residence. She had few belongings there; spent little time there other than sleeping; did not eat, wash or shower there; and spent her leisure time elsewhere. She conducted all these other activities elsewhere.
3. The applicant’s intention was to spend the bare 6 months occupying the Property, and then to vacate and move back with her partner to the Broadview property where she undertook most of her ordinary living activities in those 6 months and spent most of her waking time when she was not at work.
4. There was no degree of permanence in the applicant’s occupation of the Property.
5. The applicant’s occupation of the Property was transient and temporary only. She intended to, and did, spend only the bare minimum as prescribed in section 12(1) of the First Home and Housing Construction Grants Act 2000 at the Property, and from the commencement of her occupation intended only to remain for this time, as evidenced in both her own statements in her application to the Tribunal and in the purchase of the Broadview property jointly with her partner, as well as in her actions in the way in which she occupied the Property.
6. The applicant suggests in her application to the Tribunal that she always intended to vacate at the end of the required 6  month period. She told the Tribunal that she vacated because of financial considerations (it appeared these were mainly her partner’s financial issues as his parents required him to repay them as they were selling their own house); and because she wanted to consolidate the relationship with her partner. These reasons are consistent with the findings I have made concerning the transient nature of the applicant’s occupation of the Property.

The Tribunal also noted that in Marinis, the Tribunal concluded that the decision to impose a penalty was not reviewable by the Tribunal, with the Tribunal adopting that view again in this matter.

FIRST HOME OWNER GRANT – residence requirement – principal place of residence

Liu v Treasurer for the State of South Australia and the Commissioner of State Taxation [2019] SACAT 76

21 March 2019

The decisions subject to review are set aside and the applicants’ application for a Seniors Housing Grant is allowed.

The Tribunal set aside the decisions of the Treasurer and the Commissioner of State Taxation and allowed the Seniors Housing Grant for the following reasons:

Right of occupation is not defined under the First Home and Housing Construction Grants Regulations 2015 (the “Regulations”).  The First Home and Housing Construction Grants Act 2000 contemplates that a right under the Regulations can fall short of what would be a legal interest.  Whilst the creation of a legal interest in land usually requires writing, a right of occupation must be a right which allows the Commissioner of State Taxation to form the view that there is a “reasonable security of tenure” but need not necessarily be in writing.

The applicants had an informal right of occupation over the relevant land given to them by a relative (i.e. Dr Wells to Mrs Wells and vice-versa) at the relevant time (i.e. on completion of the contract in March 2017).  That the applicants are also trustees of a trust does not mean that they are not relatives for the purposes of the Regulations.

On the basis of the applicants’ affidavit of 8 February 2019, the applicants gave themselves an informal right of occupation that existed at the relevant time (i.e. on completion of the contract in March 2017) and that gave them reasonable security of tenure, as the land was acquired, and the building contract entered into, for the mutual purpose of the house being constructed as their place of residence for their retirement on completion of the building works.

The following factors were relevant to establishing the applicants’ informal right of occupation and reasonable security of tenure over the relevant land at the relevant time (i.e. on completion of the contract in March 2017):

• From 2005, the relevant land has been used under the same terms and conditions as the Licence Agreements of 4 May 2017.
• The purpose of buying the relevant land was to construct a home for the applicants to retire on.
• The applicants personally borrowed to contribute to the purchase of the relevant land, and have been solely responsible for repayment of the loan.
• The applicants have used the relevant land as if it were their own “in all but name and have occupied and used it over the years to the fullest extent possible as if it were our own, and with full leave and licence of the Trustees (ourselves) and of all living adult beneficiaries (our children).”
• The applicants personally paid all rates, taxes and outgoings for the relevant land.
• The applicants moved into the house that was built on the relevant land from March 2017, although there were still some building works going on around them.
• “The terms of the personal use and occupation of the [relevant land] since 2005 and the purpose of that use and occupation (to prepare for the building of our retirement house there), were reduced to writing and recorded in the licence agreements of 4 May 2017 to mark the imminent conclusion of the house project.”

SENIORS HOUSING GRANT – Non-conforming interest – A licence or right of occupancy over land given to a person by a relative – Reasonable security of tenure

Decision not published in this case.

7 March 2019

The Tribunal affirmed the decisions under review.

The Tribunal affirmed the decisions of the Treasurer and the Commissioner of State Taxation to require repayment of the First Home Owner Grant (FHOG) on the basis that the applicant did not occupy the relevant property (the “Property”) as her principal place of residence for a continuous period of at least six months (the “Residence Requirement”).

The decision to require the applicant to repay the FHOG had been made primarily on the basis of the applicant’s low utility usage, admissions regarding her typical usage of the Property, failure to update various address records, and inadequate reasons for moving out of the Property.

The Tribunal concluded that the Property did not genuinely represent the applicant’s principal place of residence and that the Residence Requirement had not been satisfied. In the Tribunal’s view, the applicant’s occupation of the Property was always in the nature of a short-term “adventure”, during which it was perceived that the Residence Requirement would be met. Objectively, it was always within the contemplation of the applicant that the Property would be rented out at the end of the requisite six-month period.

The Tribunal confirmed the application of the six principles originally set down in Chief Commissioner of State Revenue v Ferrington [2004] NSWADTAP 41 in relation to the concept of ‘principal place of residence’, these being:

(1) The words “principal place of residence” should be given their ordinary meaning in the context in which they appear.
(2) Whether a person has been occupying premises as their principal place of residence is to be assessed objectively, in the light of the circumstances relating to the actual occupation of the dwelling.
(3) The intention of the person concerned, gauged objectively, is relevant but not determinative of the issue.
(4) To occupy a home as his or her principal place of residence a person’s occupation must have a degree of permanence to it: a connection to a place of residence of a transient, temporary, contingent or passing nature is not sufficient, nor is occupation for some other purpose.
(5) The short length of a person’s residence, while relevant, is not determinative of the issue.
(6) The reasons for a person’s departure from the home must be both reasonable and adequately explained when considered objectively in the light of their personal circumstances.

In addition, the Tribunal ruled that a person will not necessarily have a principal place of residence in the sense envisaged by the First Home and Housing Construction Grants Act 2000, and that it is not necessary to identify an alternative property as the person’s principal place of residence in order to demonstrate a failure to satisfy the Residence Requirement.

FIRST HOME OWNER GRANT – residence requirement – principal place of residence

Marinis v Commissioner of State Taxation & Anor [2019] SACAT 74

3 December 2018

The Tribunal affirmed the decisions under review.

The Tribunal affirmed the decisions of the Treasurer and the Commissioner of State Taxation to deny an application for the Seniors Housing Grant (SHG) on the basis that the applicant did not commence an eligible transaction during the eligibility period.

The applicant signed a comprehensive home building contract prior to the abolition of the SHG, however a representative of the builder did not countersign the contract until after abolition. Unless the parties held a different intention, a contract was not “made” for the purposes of the SHG until the final signature was applied.

The Tribunal concluded that the signing of the contract by the applicant did not create a contract, but instead constituted an offer to the builder which required acceptance. In the Tribunal’s view, the builder did not consider itself legally bound by the contract until it had been signed on its behalf. It was clear that the builder maintained the right to decline to sign the contract and to then produce a substantially different contract to the applicant. Furthermore, it was apparent that the contract was drafted with the provisions of the Building Work Contractors Act 1995 in mind (Section 28 of that Act requires that such a contract be in writing and signed by both parties).

HOUSING CONSTRUCTION GRANT – comprehensive home building contract – eligible transaction – owner builder – transaction commencement date

Shipley v Commissioner of State Taxation [2018] SACAT 50

8 August 2017

1. The Tribunal affirmed the decisions under review.

The Tribunal affirmed the decisions of the Treasurer and Commissioner of State Taxation to deny an application for the Housing Construction Grant (HCG) on the basis that the applicant did not commence an eligible transaction during the eligibility period.

The ‘Supervision Only (Project Management) Housing Work Contract’ executed by the applicant was not a ‘comprehensive home building contract’ for the purposes of the HCG. As such, the applicant was classified as an owner builder whose eligible transaction did not commence until foundations were laid.

The Tribunal also concluded that there was no sufficient reason to exercise the statutory discretion to vary the applicant’s transaction commencement date (to make it the date of the contract). Executive Member Stevens stated that the date of the applicant’s contract bore no relation to the date when foundations were laid and that such an exercise of the discretion would potentially circumvent the legislative distinction between applicants who enter into comprehensive home building contracts and those who are owner builders.

HOUSING CONSTRUCTION GRANT – comprehensive home building contract – supervision only contract – eligible transaction – owner builder – transaction commencement date

Decision not published in this case.