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

Decision not published in this case.

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

Decision not published in this case.

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

Decision not published in this case.

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.