. 396 CATCHWORDS Administrative Law - Appeal from Administrative Appeals Tribunal - Grant under Home Deposit Assistance Act 1982 - Purchase of approved interest in land - purchase by tenant in common of interests of other co-tenants. ar Administrative Appeals Tribunal Act 1975 5.44. Home Deposit Assistance Act 1982 ss.3,4,11,15. DIRECTOR-GENERAL OF SOCIAL SECURITY v RUGER JOHN TOWNSEND and WENDY TOWNSEND CORAM: Bowen C.J., Northrop J. and Everett JJ. 23 November 1984 Hobart IN THE FEDERAL COURT OF AUSTRALIA TASMANIA DISTRICT REGISTRY No. TG 5 of 1984 GENERAL DIVISION ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MR. R.C. JENNINGS 0.C. (DEPUTY PRESIDENT) BETWEEN : DIRECTOR-GENERAL OF SOCIAL SECURITY Applicant AND: ROGER JOHN TOWNSEND and WENDY TOWNSEND Respondents ORDERS JUDGES MAKING ORDER: Bowen C.J.. Northrop and Everett JJ. WHERE MADE: Hobart DATE: 23 November 1984 THE COURT ORDERS THAT: 1. The appeal be dismissed. - 2. The applicant pay the respondents' costs of the appeal. ' > IN THE FEDERAL COURT OF AUSTRALIA ) ) TASMANIA DISTRICT REGISTRY ) No. TG 5 of 1984 ) ) GENERAL DIVISION ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MR. R.C. JENNINGS 0.C. (DEPUTY PRESIDENT) BETWEEN : DIRECTOR-GENERAL OF SOCIAL SECURITY Applicant AND: ROGER JOHN TOWNSEND and WENDY TOWNSEND Respondents CORAM: Bowen C.J., Northrop J. and Everett JJ. 23 November 1984 REASONS FOR JUDGMENT: THE COURT: This 1s an appeal froma decision of a Deputy President of the Administrative Appeals Tribunal raising a question of law in respect of the interpretation of the expression "approved interest" in the Home Deposit Assistance Act ' 1982 ("the Act"). The facts were not in dispute. On 21 November 1980 Roger John Townsend, the firstnamed respondent, his sister and two brothers became registered proprietors as tenants in common in equal shares of a property at Cradoc, in Southern Tasmania ("the property"), which they inherited from their deceased father. The property was comprised in Certificate of Title Volume 2160 Folio 25. By a contract of sale dated 18 May 1982 'the respondents, Roger John Townsend and Wendy Townsend, who were husband and wife, agreed to purchase the property for $21,000 from Roger John Townsend's sister and his two brothers. A memorandum of transfer was executed by the vendors and by Roger John Townsend. The transferees were the respondents who were registered on 22 June 1982 as joint proprietors of the -land described in the Certificate of Title to which reference has been made. The respondents applied on 26 July 1982 for a home deposit assistance grant in respect of the dwelling on the property in accordance with sub-s.16(1) of the Act. At the time of the application the Act was-administerea by the Department of Social Security. On 3 September 1982 a delegate in Tasmania of the Director-General of Social Security advised the respondents that "on the basis of the information disclosed in the application and supporting documents, the legislation does not permit the payment of a grant in your case". On 8 September 1982 solicitors for the respondents wrote to the delegate of the Director-General requesting that the decision be reconsidered (sub-s.47(1) of the Act). However, the delegate of the Director-General affirmed the decision on 11 March 1983. Pursuant to sub-s.29(1) of the Administrative Appeals Tribunal Act 1975, the respondents applied to the Tribunal for a review of that decision. On 13 April 1984, a Deputy President of 'the Tribunal set aside the decision under review and, in substitution for it, decided that the respondents are entitled to a grant in accordance with the provisions of the Act. This appeal is from that decision. Subject to the interpretation placed by the delegate of the Director-General, and maintained: by counsel for the Director-General, on the words "the purchase of a dwelling" in sub-s.15(1) of th Act, it has not been disputed that each of the respondents is otherwise a "prescribed person", as defined in sub-s.4(1), in celation to the dwelling on the property by virtue of sub-s.15(1), which provides: "15(1) Where, on or after 18 March 1982, a person (in this section referred to as the "home acquirer") has, or 2 or more persons 'in this section referred to as the "home acquirers") together have - (a) entered into a contract_for the purchase of a dwelling situated in Australia; (b) a eaee (c) ween . then, subject to sub-section (2) and section 5, the home acquirer or each of the home acquirers, as the case may be, is, .... for the purposes of this Act, a prescribed person in relation to the dwelling." (The qualifications in sub-s.(2) and s.5 are not relevant). Sub-section 15(3) is in these terms: "15(3) Where - (a) a person is a prescribed person in relation toa dwelling; and (b) subject to sub-section (5), a grant under a prescribed Act or under this Act has not been made to the prescribed person, either alone or jointly with another person, the prescribed person is, for the purposes of -section 16, a person to whom this sub-section applies." Sub-section 16(1) provides: "36(1) Where the person, or each person, whois a prescribed person in relation to a dwelling is a person to'whom sub-section 15(3) applies in relation to the dwelling, an application for a grant in respect of the dwelling may be made in accordance with this section." The essential issue raised by the appeal is whether or not, having regard to the whole Act, the contract of sale dated 1B May 1982 was "for the purchase of a dwelling" (sub-s.15(1)). The other relevant provisions ace exvressed in ss.4 and 11, which, so far as 15 material. provide: "4(1) In this Act, unless the contrary intention appears-— "approved interest: means - (a) An estate in fee simple; » eoneee The terms of s.1ll1, so far as relevant, are: "11(1) A veference in this Act (other than sections 26 and 27) to purchase, or to ownership, in relation to land or an undivided share in land, shall be read as a reference to purchase or ownership, as the case may be, otherwise than as trustee, of an approved interest in the land or in the undivided share, as the case may he. (2) A reference in this Act to purchase, or to ownership, in relation to a dwelling, shall be read as a reference to purchase or ownership, as the case may be, otherwise than as trustee, of - (a) whether or not the dwelling is a dwelling of a kind referred to in paragraph (b) - the land on which the dwelling is, or is to be, erected; The expressed object of the Act is to assist persons to purchase or build their own homes. More specifically, s.3 provides: "3 The objects of this Act are to encourage and assist persons to purchase or build their own homes and to encourage persons to save for the purpose of purchasing or building their own homes, and, in the construction and the administration of this Act, regard shall be had to those objects." In Secretary, Devoartment of Housing and Construction v Wildman (judgment given on 23 November 1984), this Court stated: "In having regard to those objects, the Secretary must take them unto account and give weight to them asa fundamental element in making this determination under sub-section 15(6); see R v Hunt; Ex Parte Sean Investments Pty. Ltd. (1979) 25 A.L.R. 497 per Mason J. - at p.504 and Murphy J. at p.508, Municipal Officers' Association v Lancaster (1981) 37 A.L.R. 559 per Evatt and Northrop JJ at pp.578-9 and Wright v McLeod (1983) 51 A.L.R. 483 per Bowen C.J. at p.489." The submission advanced to the Deputy President, and repeated to this Court, was that because Roger John Townsend had been, before the date of the contract of 18 May 1982, a tenant in common of the property in ' equal shares with his sister and two brothers, he had not entered into "a contract for the purchase of a dwelling" (sub-s.15(1) of the Act). ' The argument of that, although it was not disputed counsel for the Director-General was that the respondents, from about 27 May 1982, had owned an estate in fee simple in the subject land, it did not follow that they entered into a contract for the purchase Rather, it was shares in an estate in fee three vendors own agree to sell. The Court does relevant statuto expressed objeccs purchase their own homes, which was qiven statutory expression Act 1964. On the ar ed ry un of an estate in fee simple on 18 May 1982. gued, they contracted to purchase undivided simple, because that was all that the and, therefore, all that they could lawfully provisions. To of a statute designed in accordance not accept such an interpretation of the do so would negate the cco encourage persons toa generally with a policy n the Home Savings Grant disputed facts, the Court considers that the respondents entered into a "contract dwelling" (sub-s.15(1)). virtue of para.11(2)(a) of the Act to "purchase of purchase of the Sub-section 11(1) a dwelling" must The contract the be land on which the then requires that a for the purchase of a was in proper form. By reference in sub-s.15(1) read as a reference to dwelling was erected. reference in the Act to t "purchase in relation to land or an undivided share in land" shall be read as a reference to "purchase of an approved interest in the land or in the undivided share". The final step in 'determining the eligibility of the respondents for a grant under the Act is to decide whether or not the contract was in respect of an "approved interest" (sub-s.4(1)). The primary "interest" is therein defined as "an estate in fee simple" (our emphasis). Other paragraphs of the definition specify "interests" which are less than an estate in fee simple, but in two such cases the Secretary of the Department of Housing and Construction must be satisfied that the interest gives "reasonable security of tenure" to the holder of the lesser interest. Those provisions reinforce the expression of the objects of the Act in s.3. At the date of the contract, Roger John Townsend was the owner of one undivided quacter share in the property. He contracted to purchase, jointiy with his wife, the three remaining undivided quarter shares. The consequential memorandum of transfer vested an estate in fee simple in the respondents jointly. In the opinion of the Court, the contract was one for the acquisition of an estate in fee simple, both on a literal interpretation of the relevant provisions of the Act and witha proper regard for the fundamental element in the approach prescribed by s.3. In both the contract of sale and the memorandum of transfer there was recognition of the existence of separate interests in the property. ros The interpretation adopted by the Court is consonant with the practical position under the Tasmanian Torrens system of land registration. Section 15 of the Real Property Act 1886 'provided: "15 In all cases where two or more persons are entitled as tenants in common to undivided shares of or in any land, such persons may receive one certificate for the entirety or separate certificates for the undivided shares." The '1886 Act, together with all related statutes, was repealed by the Land Titles Act 1980, which was proclaimed to commence onl] October 1981. Although the 1980 Act does not contain a separate section in the same form as s.15 of the 1886 Act, the effect of s.15 is preserved by the following provisions of the 1980- Act: "33(6) The Recorder may, if ne deems 1t convenient to do so, create a folio of the Register for - (a) ...--. (c) ..... (d) an undivided share in land. 33(8) Except as may otherwise be prescribed, when the Recorder creates a folio of the Register, he shall in the prescribed manner prepare a certificate of title to the same land." Counsel for the Director-General sought to support his argument by reference to the provisions of the Home Savings Grant Act 1964, the Home Savings Grant Act 1976 and the First Home Owners Act 1983. The Court does not derive any assistance in determining this appeal from any of those statutes. For completeness, it is recorded that in the course of argument it became apparent that the contract and memorandum of transfer were not formally tendered to the Deputy President, no 'doubt because there was no dispute in respect of the relevant facts. In order to obviate any difficulty arising from the fact that the Court is exercising original jurisdiction in respect of a question of law, counsel for all parties agreed that office copies of the contract and memoranddum of transfer should be tendered as exhibits to enable the Court to exercise its discretion as to what form any orders made by the Court should take. This course was followed with the approval of the Court. The appeal will be dismissed and the decision of the Administrative Appeals Tribunal affirmed. The applicant should pay the respondents' costs of the appeal. I certify that this and the & preceding pages are a true copy of 'the reasons for judgment herein of the Court Pate DreT hol, pesca Dated 23 Nowenbe, (28h.