Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Secretary, Department of Family & Community Services v Draper [2003] FCA 1409 SOCIAL SECURITY – valuation of assets under s 1121(1) of the Social Security Act 1991 (Cth) - meaning of 'asset' - whether 'financial asset' is a subcategory of 'asset'
Social Security Act 1991 (Cth), Pts 3.10, 3.12; ss 9(1), 11(1), 1121(1), 1076
Re Anstis and Secretary, Department of Family and Community Services (1999) 30 AAR 122 distinguished Re Radovanovic and Secretary, Department of Family and Community Services (2000) 61 ALD 530 cited Blunn v Cleaver (1993) 47 FCR 111 cited Broken Hill South Ltd v Commissioner of Taxation (NSW) (1937) 56 CLR 337 cited Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 cited SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES v GEOFFREY DRAPER N 1123 OF 2003
STONE J 4 DECEMBER 2003 SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY N 1123 OF 2003
BETWEEN: SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
APPLICANT
AND: GEOFFREY DRAPER
RESPONDENT
JUDGE: STONE J
DATE OF ORDER: 4 DECEMBER 2003
WHERE MADE: SYDNEY
THE COURT ORDERS THAT: 1. The application be dismissed. 2. There be no order as to costs. 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 N 1123 OF 2003
BETWEEN: SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
APPLICANT
AND: GEOFFREY DRAPER
RESPONDENT
JUDGE: STONE J
DATE: 4 DECEMBER 2003
PLACE: SYDNEY
REASONS FOR JUDGMENT
Introduction 1 Pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) the applicant appeals from a decision of the Administrative Appeals Tribunal given on 25 July 2003, on a point of law concerning the proper construction of s 1121(1) of the Social Security Act 1991 (Cth) ('Act'). 2 Section 1121 is headed, 'Effect of charge or encumbrance on value of assets'. It provides in subsection (1): 'If there is a charge or encumbrance over a particular asset of the person, the value of the asset, for the purposes of calculating the value of the person's assets for the purposes of this Act, is to be reduced by the value of that charge or encumbrance.'
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