Battista v Chief Commissioner of State Revenue [2002] NSWADT 92

CITATION: Battista v Chief Commissioner of State Revenue [2002] NSWADT 92 DIVISION: General Division APPLICANT PARTIES: Vincenzo Battista RESPONDENT Chief Commissioner of State Revenue FILE NUMBER: 023058 HEARING DATES: 24/04/2002 SUBMISSIONS CLOSED: 04/24/2002 DATE OF DECISION: 06/03/2002

BEFORE: Hennessy N (Deputy President) 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: In person RESPONDENT C Puckering, agent ORDERS: The Chief Commissioner's decision not to approve the additional grant of $7,000 is affirmed

Introduction 1 On 11 March 2002 Mr Battista lodged an application with the Tribunal requesting a review of a decision of the Chief Commissioner, Office of State Revenue (Chief Commissioner). The decision was not to approve Mr Battista's application for an additional $7,000 grant under the First Home Owner Grant Scheme (FHOGS). The Chief Commissioner refused Mr Battista's application because he did not meet all the requirements of the First Home Owner Grant Act 2000 (FHOG Act). Jurisdiction 2 The Tribunal has jurisdiction to review this decision under s 28(1) of the FHOG Act and s 38 of the Administrative Decisions Tribunal Act 1997. The applicant has the onus of proving his or her case in an application for review (s 28(3) of the FHOG Act). Background 3 Mr Battista successfully applied for the initial $7,000 grant available under the FHOG Act. Under that scheme a person who has not owned a residential property before 1 July 2000 is eligible for the grant, provided all the other requirements are met. The FHOC Act provides an additional $7,000 for contracts for new homes made between 9 March 2001 and 31 December 2001. Section 13A(6) of the FHOG Act provides that the additional grant is not available if the Commissioner is satisfied that: (a) the contract replaces a contract made before 9 March 2001, and (b) the replaced contract was: (i) a contract for the purchase of the same home, or (ii) a comprehensive home building contract to build the same or a substantially similar home. 4 Mr Battista signed two home building contracts. The first contract was dated 25 February 2001 and the second was dated 14 March 2001. The Chief Commissioner was satisfied that the contract dated after 14 March 2001 replaced the contract made on 25 February 2001. 5 On 10 October 2001, Mr Battista wrote to the Chief Commissioner objecting the decision. By letter of 15 January 2002, the Chief Commissioner disallowed the objection commenting that the later contract simply replaces the previous one dated 25 February 2001 for the same home. 6 With the consent of the parties, this matter was decided "on the papers" pursuant to s 76 of the Administrative Decisions Tribunal Act 1997 (ADT Act). Issue 7 The issue in this case is whether the Chief Commissioner made the correct and preferable decision in refusing Mr Battista's the application for the additional grant of $7,000. The onus is on Mr Battista to prove his case (s 28(3) FHOG Act). Evidence 8 In a letter to the Chief Commissioner dated 10 October 2001 Mr Battista wrote that: On the advice of Nicole from the Office of State Revenue in Sydney, she suggested to re-submit the application with a new Contract dated after 09-03-2001 in order to be eligible for the additional $7,000 grant. 9 Mr Battista went on in this letter to state that: . . . the date on the Building Contract was incorrectly marked as 25 February 2001, and should have been dated 14 March 2001. 10 Mr Battista also referred to a letter from his builder, Peter Brown, to the Chief Commissioner dated 28 August 2001. In that letter Mr Brown stated that the reason for the different dates was that: "I had to wait for some answers from my engineer about the plans before we could agree on (sic) with the owners (Battistas). When the answer came we forgot to change the date on the contract which at that time was not in force yet." 11 In a letter to the Commissioner dated 21 February 2002 Mr Battista stated that the contract of 25 February 2001 "was effectively rescinded and took the form of a null contract." Respondent's Submission 12 The Chief Commissioner submitted that the contract of 14 March 2001 replaced the contract of 25 February 2001 and that the replaced contract was a comprehensive home building contract to build the same or a substantially similar home. The Chief Commissioner also submitted that there is no evidence to show that the original contract of 25 February 2001 was rescinded or the deposit forfeited. Reasons and Decision 13 Given the facts of this case, in order to refuse an application for the additional grant the Commissioner needs to be satisfied that: · the contract replaces a contract made before 9 March 2001, and · the replaced contract was a comprehensive home building contract to build the same or a substantially similar home. 14 To determine whether the contract of 14 March 2001 "replaces" the contract of 25 February 2001 the Tribunal must look at the terms of the contracts. Both contracts are in the standard form and are identical in every respect apart from the date. The fact that the builder had to wait for some answers from the engineer does not change the fact that the contract dated 25 February 2001 was a valid contract. Mr Battista has failed to prove that the contract dated 14 March 2001 did not replace the earlier contract. 15 The second issue is whether the contract of 14 March 2001 is a comprehensive home building contract to build the same or a substantially similar home as envisaged by the contract of 25 February 2001. This issue was not in dispute. Orders 16 The Chief Commissioner's decision not to approve the additional grant of $7,000 is affirmed.