Unicomb, Geoffrey William v Secretary, Dept of Social Security [1998] FCA 204

FEDERAL COURT OF AUSTRALIA ADMINISTRATIVE LAW - appeal from decision of Administrative Appeals Tribunal. SOCIAL SECURITY - Social Security Act 1991 (Cth), s 1122 - applicant's social security entitlement subject to assets test - value of assets to include amount that a person "lends" - whether applicant lent sum of $647,000 within the meaning of the Act. Social Security Act 1991 (Cth) Re Gordon and Department of Social Security (1992) 16 AAR 100, cited GEOFFREY WILLIAM UNICOMB v SECRETARY, DEPARTMENT OF SOCIAL SECURITY NG 458 of 1996 BRANSON J SYDNEY 13 MARCH 1998

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY nG 458 of 1996

BETWEEN: GEOFFREY WILLIAM UNICOMB

Applicant

AND: SECRETARY, DEPARTMENT OF SOCIAL SECURITY

Respondent

JUDGE(S): BRANSON J

DATE OF ORDER: 13 MARCH 1998

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY nG 458 of 1996

BETWEEN: GEOFFREY WILLIAM UNICOMB

Applicant

AND: SECRETARY, DEPARTMENT OF SOCIAL SECURITY

Respondent

JUDGE(S): BRANSON J

DATE: 13 MARCH 1998

PLACE: SYDNEY

REASONS FOR JUDGMENT INTRODUCTION This is an appeal against a decision of the Administrative Appeals Tribunal ("the Tribunal") whereby the Tribunal set aside a decision of the Social Security Appeals Tribunal and remitted the matter before it to the respondent to recalculate the applicant's entitlement to social security benefit. The applicant's relevant entitlement to social security benefit is an entitlement which is subject to an assets test. The question of law raised on the appeal relates to the proper interpretation of s 1122 of the Social Security Act 1991 (Cth) ("the Act"), which is concerned with the calculation of the value of a person's assets for the purposes of the Act. Section 1122 of the Act provides as follows: "If a person lends an amount after 27 October 1986, the value of the assets of the person for the purposes of this Act includes so much of that amount as remains unpaid but does not include any amount payable by way of interest under the loan." (emphasis in Act) BACKGROUND FACTS The facts relevant to this appeal fall within a narrow compass. In about August 1993, Paul Unicomb ("Paul"), the applicant's son, had plans for the construction of some home units by a company controlled by him, Chemle Pty Limited ("Chemle"). Paul requested the applicant to help with the raising of the money necessary to allow the home unit project to proceed. The applicant agreed to help with the raising of such money. Paul made an approach to Australian Guarantee Corporation Limited ("AGC"). On 18 August 1993, a deed described as a "Deed of Incoming Guarantee" ("the Deed") was signed. The parties to the Deed, and their respective description therein, were as follows: The applicant: "the Borrower" AGC: "the Lender" Geoff Unicomb & Sons Pty Ltd and Patricia Mary Unicomb: "the Continuing Guarantors" Chemle: "the Incoming Guarantor".