Gregoriou -v- Chief Commissioner of State Revenue [2003] NSWADT 145

Set aside by Appeal : Set aside on 16/7/03 without considering any submissions or reaching any conclusions as to the underlying decision

CITATION: Gregoriou -v- Chief Commissioner of State Revenue [2003] NSWADT 145 DIVISION: General Division APPLICANT PARTIES: Dean Gregoriou RESPONDENT Chief Commisioner of State Revenue FILE NUMBER: 023236 HEARING DATES: 19/03/2003 SUBMISSIONS CLOSED: 03/19/2003 DATE OF DECISION: 05/07/2003

BEFORE: Higgins S - Judicial Member APPLICATION: first home owners grant - approval of application - First Home Owners Grant Act - first home owners grant - approval of application MATTER FOR DECISION: Principal matter LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 First Home Owners Grant Act 2000 CASES CITED: APPLICANT REPRESENTATION: J O'Donnell, solicitor RESPONDENT G van Emmerik, agent ORDERS: Orders made 19 March 2003; The decision of the Chief Commissioner is set aside.

EX-TEMPORE BACKGROUND 1 Mr Gregoriou has made an application seeking review of the decision by the Chief Commissioner of State Revenue ('the Commissioner') to reverse his decision in respect of giving him a first home owner grant and to request that he repay the $7000 grant that he had been paid. The basis of the Commissioner's decision was that Mr Gregoriou had failed to take up residence in the property, to which the grant related, within 12 months of the grant being paid. This was a requirement under section 12 of the First Home Owner Grant Act 2000. 2 The Tribunal has jurisdiction to hear Mr Gregoriou's application by virtue of sections 25 and 28 of the First Home Owner Grant Act and section 38 of the Administrative Decisions Tribunal Act, 1997. RELEVANT LAW 3 The relevant law is that contained in the First Home Owner Grant Act 2000. Division 2 of Part II of that Act sets out five eligibility criteria for a first home owner grant. The fifth eligibility criteria is set out in section 12(1) of the Act which provides, so far as is relevant, as follows: Section 12(1) - An applicant for a first home owner grant must occupy the home to which the application relates as the applicant's principal place of residence within 12 months after completion of the eligible transaction or a longer period approved by the Commissioner. 4 Section 23 of the First Home Owner Grant Act gives the Commissioner power to vary or reverse a decision he has made in respect of an application for a grant where he is later satisfied that the decision is incorrect. However, he must do so within five years of the original decision having been made. 5 Section 24(1) of the First Home Owner Grant Act provides that where the Commissioner decides to reverse an earlier decision on an application for a grant, the Commissioner is required to give the applicant written notice of the reversal and state in the notice the reasons for the reversal. 6 Section 45 of the First Home Owner Grant Act gives the Commissioner the power to request the repayment of the amount approved and paid under an application for a grant under the Act. That section, so far as is relevant, provides: 45(1) - The Chief Commissioner may by written notice require an applicant (or a former applicant) for a first home owner grant to repay an amount paid on the application if: