Ovari v Secretary, Department of Employment, Education, Training & Youth Affairs [1999] FCA 1416

FEDERAL COURT OF AUSTRALIA Ovari v Secretary, Department of Employment, Education, Training & Youth Affairs [1999] FCA 1416 ADMINISTRATIVE LAW – appeal from a decision of the Administrative Appeals Tribunal ("the Tribunal") that the applicants were not entitled to AUSTUDY in 1996 – assets test – whether family's assets exceeded $393,750 – whether full value of property found to be the principal home but from which business activities were conducted ought to have been excluded from assets – whether intra-family loan ought to have been excluded from assets – whether the Tribunal's methodology of averaging asset values to determine eligibility for AUSTUDY for a particular period was incorrect

Student & Youth Assistance Act 1973 (Cth), Parts 2 and 9

Administrative Appeals Tribunal Act 1975 (Cth), s 44 AUSTUDY Regulations (Cth), regs 13(1A), 14(1), 14(4), 15

Re Di Primio and Secretary, Department of Social Security (1993) 31 ALD 233, distinguished Re Stewart and Secretary, Department of Social Security (1987) 11 ALD 470, discussed Re Bowden and Repatriation Commission (1992) 15 AAR 325, discussed

ATTILA FRANCIS OVARI and ZOLTAN LASZLO OVARI v SECRETARY, DEPARTMENT OF EMPLOYMENT, EDUCATION, TRAINING AND YOUTH AFFAIRS AG 57 OF 1997 GYLES J CANBERRA

7 OCTOBER 1999

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY AG 57 OF 1997

BETWEEN: ATTILA FRANCIS OVARI

First Applicant

ZOLTAN LASZLO OVARI

Second Applicant

AND: SECRETARY, DEPARTMENT OF EMPLOYMENT, EDUCATION, TRAINING AND YOUTH AFFAIRS

Respondent

JUDGE: GYLES J

DATE OF ORDER: 7 OCTOBER 1999

WHERE MADE: CANBERRA

THE COURT ORDERS THAT: 1. The decision of the Administrative Appeals Tribunal of 23 June 1997 be set aside. 2. The decisions of the delegate of the respondent made on 29 January 1997 be set aside and in lieu it be determined that each applicant was eligible for AUSTUDY in 1996. 3. The respondent to pay the applicants' costs of the appeal from and including 26 August 1998. 4. The proceedings be remitted to Finn J to determine the proper order in relation to costs incurred before 26 August 1998.