Appeal Panel - Internal CITATION: Chief Commissioner of State Revenue v Bramley (GD) [2003] NSWADTAP 63 APPELLANT PARTIES: Chief Commissioner of State Revenue RESPONDENT Marilyn Bramley FILE NUMBER: 039046 HEARING DATES: 25/08/03 SUBMISSIONS CLOSED: 08/25/2003 DATE OF DECISION: 12/04/2003 Bramley v Chief Commissioner of State Revenue [2003] NSWADT 135 DECISION UNDER APPEAL: BEFORE: Hogan A - Deputy President; Verick A - Judicial Member; Mapperson K - Member CATCHWORDS: relevant/irrelevant considerations MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 023303 DATE OF DECISION UNDER APPEAL: 06/06/2003 LEGISLATION CITED : Conveyancing Act 1919 First Home Owners Grant Act 2000 CASES CITED: APPELLANT REPRESENTATION: N Sharp, barrister RESPONDENT In person ORDERS: 1 Appeal dismissed 1 This is an appeal from a decision of the Tribunal at first instance, in which the decision of the appellant not to approve the respondent's application for a first home owner grant was set aside, and a decision was substituted to approve her application for the grant. 2 As the Tribunal at first instance noted, reviews by the Tribunal of decisions by the Chief Commissioner under this legislation are governed by section 28 of the First Home Owner Grant Act 2000, which contains the following provisions: "(2) The applicant's and the respondent's cases on an application for review are not limited to the grounds of the objection. (3) The applicant has the onus of proving the applicant's case in an application for review." 3 The appellant had purchased a home at Kellas St, Lismore Heights, in June 2002. Apart from the matter at issue in this case, she qualified for a grant of $7,000. 4 The matter at issue arises out of the provisions of section 11 of the Act, which sets out criterion 4 of eligibility for a grant. The section provides, so far as is relevant: "(1) An applicant for a first home owner grant is ineligible for the grant if the applicant or the applicant's spouse has, before 1 July 2000, held: (a) a relevant interest in residential property in New South Wales" 5 "Relevant interest" is defined in section 5 (2), (3) and (4). That section provides, so far as is relevant: (2) Each of the following is, subject to subsection (3), a relevant interest in land: (c) a perpetual lease of the land granted by the Commonwealth or the State, (3) Subject to subsection (4): (a) an interest is not a relevant interest at a particular time unless the holder of the interest has, or will have within 12 months after that time (or a longer time allowed by the Chief Commissioner), a right to immediate occupation of the land, and (b)…. 6 Subsection (4) has no operation in this case. 7 The facts, which, in the appellant's view, rendered the respondent ineligible for a grant, are as follows. 8 The respondent's father died intestate in 1961. Her mother and her three sisters were therefore statutory beneficiaries of his estate. The estate included a house property at 144 Hill St. Muswellbrook, which was held on perpetual lease granted by the State. The respondent's mother lived there. The respondent had not lived there since 1968. 9 On 17 April 1991 the land at Muswellbrook was transmitted into the names of the respondent, her sisters and her mother. It is held by them as tenants in common in the following proportions:- - the respondent's mother, Betty Bramley; 7/15ths - the respondent and each of her 3 sisters; 2/15ths each. 10 It follows that the respondent is ineligible unless she did not have a right to immediate occupation of the land. 11 As the Tribunal at first instance rightly noted, "A co-owner is entitled, by law, to occupy the whole property, along with any other co-owner who chooses to do so – See Butt, Land Law, Law Book Co, 4th edition, para [1427] and the cases cited therein. As a tenant in common enjoys unity of possession, s/he is entitled to occupy the whole property, not merely, in this case, 2/15th of the whole." 12 The respondent, who is not a lawyer, had frankly disclosed to the appellant her interest in the Muswellbrook house when making her application. She included in her application an explanation of how she came to have an interest in the property, and a statutory declaration by her mother that she had never contributed to the running expenses or maintenance of it. 13 In her letter dated 21 June 2002, which accompanied her application, she stated, "I personally had been removed from family matters for many years due to extreme personal issues and was uninvolved in matters concerning the property, My sisters Jennifer and Dianne told me that they had secured the land-apparently Dad owned the house but not the land-from the Lands Department and had decided it was time to settle the estate. My understanding is that the estate was settled according to the statutory order of beneficiaries. Contribution to property I didn't contribute in any way financially to the process of land acquisition or estate settlement. I have never been asked or offered to contribute in any way to the property. In fact, I have considered the house so totally Mum's that it didn't even cross my mind that I should or recognise that I legally may have been obliged to. In fact it has only been in the last few years that my sisters have disclosed to me that they contribute to the rates and maintenance of the property. They said that as a sole parent with limited means they did not expect me to. My living arrangements I left home in 1968, and have not lived at my mother's house since. My mother is now the sole resident of the house and as an adult, I have always considered the place hers. My understanding is that the home and all its proceeds will remain my mothers until she dies. My understanding is that this is to safeguard her housing and care needs in her latter years. Any benefit will not accrue to any of the sisters until after her death. This is of course a personal understanding between family members and is not set in law." 14 The respondent did not have access to Mr Butt's admirable work. When the appellant rejected her application, she sought assistance from a solicitor. There is no evidence that he consulted it. He merely drew her attention to the definition of "relevant interest" in section 5(2) &(3). On August 2002 she wrote, "I submit that I do not have a relevant interest by virtue of the provisions of section 5(3) in that I do not have a right to immediate occupation of the land nor will I within the next 12 months or at all in the future. My mother Betty Bramley occupies the house and has done so since 1959, and will continue to occupy the house, in her hopes, until she dies. I have not lived in this house since I left home as a young person in 1968 aged 18. I am buying the Kellas St residence for myself and my daughter Gabrielle. Gabriel is a high functioning autistic person and is in need of ongoing support. Apart from the fact that three persons could not fit into my mother's house, it being a two-bedroom dwelling, the combination of my daughter and her needs and my elderly mother and her needs are totally incompatible and any joint residency with my mother is untenable. Also I do not have the right to move her out so that my daughter and I can be housed there. My mother holds 7/15ths of the property. The rest in equal 2/15ths shares to me and my sisters. I once again submit that for all practical purposes and according to the parts of the Act, I have no relevant interest in my mother's house." 15 In response, on 17 Oct 2002, the appellant replied, "Your claim that by virtue of the provisions of section 5 (3) of the Act have also been examined (sic). It is considered that, you are not prevent (sic) from immediate occupation of 144 Hill St, but rather it is by personal choice and decision that you have not resumed occupation of the property. Consequently it is considered that section 5 (3) has no application" 16 The Tribunal at first instance noted that it is possible for co-owners to agree that the general legal position relating to rights to occupancy be altered. We agree. 17 Counsel for the appellant submitted that there was no evidence in this case of any agreement capable of suspending the respondent's right of occupation. She relied upon Ss 23C and 23D of the Conveyancing Act 1919. In our opinion those sections have no application to this case, since what is in issue is not the creation or disposition of interests in land, but an agreement about the exercise of rights arising from the already existing, and unaltered, interests in the land. 18 Counsel also submitted that a promise not to exercise a right does not do away with the right. In one sense that is true. When the respondent's mother dies, the respondent and her sisters will still have their rights to possession. But, again, that is not what is in issue in this case. If a person who has a right to immediate occupation of land makes an enforceable promise not to exercise it for a particular period of time, then during that time the person no longer has the right to immediate occupation. 19 As the Tribunal at first instance noted, the "understanding" referred to by the respondent was broadly stated. It was not formalised or documented at the time. But no writing would be required to make enforceable the promise by the respondent not to exercise her right of occupation. 20 The review was conducted "on the papers". There was no opportunity for the respondent to supplement her submissions with evidence led by a lawyer with insight into the exact matter in issue. 21 Nevertheless, we are satisfied that she has proven, on the balance of probabilities, that, as the Tribunal at first instance held, "she has agreed with her mother and the other co-owners that her mother has sole occupancy of the premises." 22 The existence and the terms of that agreement are evidenced, not only by the respondent's version of the "understanding", but also by the mother's long occupation of the house, the concurrence in the arrangement by the respondent's sisters, and the absence of any suggestion that the respondent should contribute to the expenses of upkeep. There was consideration moving from the mother for the respondent's promise, in her forbearing to seek any contribution from the respondent for upkeep of the property in which she had an interest. There was consideration moving from each of the sisters to the others, in their several promises not to exercise their own right of occupation. Had the respondent attempted to exercise her right of occupation the attempt could successfully have been resisted, whether by the mother or by any one or all the respondent's sisters, by reliance on that enforceable promise. 23 In those very special circumstances we are satisfied that, at the relevant time, the respondent did not have the right to immediate occupation of the Muswellbrook property. We would dismiss the appeal, and confirm the orders: 1. Setting aside the appellant's decision not to approve the respondent's application for a first home owner grant; and 2. Substituting a decision to approve the respondent's application for a first home owner grant. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.