Rositano v Chief Commissioner of State Revenue [2004] NSWADT 289

CITATION: Rositano v Chief Commissioner of State Revenue [2004] NSWADT 289 DIVISION: General Division APPLICANT PARTIES: Angela Rositano RESPONDENT Chief Commissioner of State Revenue FILE NUMBER: 043044 HEARING DATES: On the papers SUBMISSIONS CLOSED: 11/23/2004 DATE OF DECISION: 12/16/2004

BEFORE: Montgomery S - Judicial Member APPLICATION: first home owners grant - reversal of original decision - First Home Owners Grant Act - first home owners grant - reversal of original decision MATTER FOR DECISION: Principal matter LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 First Home Owners Grant Act 2000 CASES CITED: Chief Commissioner of State Revenue -v- Ferrington (GD) [2004] NSWADTAP 41 APPLICANT REPRESENTATION: In person RESPONDENT M Twohill, solicitor ORDERS: 1. The decision under review is set aside; 2. In substitution the decision is made that Ms Rositano is entitled to the First Home Owner's Grant.

REASONS FOR DECISION 1 On 19 February 2004, Ms Angela Rositano applied to the Tribunal pursuant to section 28 of the First Home Owners Grant Act 2000 ("the FHOGA") and section 38 of the Administrative Decisions Tribunal Act, 1997. Ms Rositano sought a review of the decision by the Chief Commissioner of State Revenue ("the Chief Commissioner") to reverse an earlier decision under which Ms Rositano was paid an amount of $7,000 under the FHOGA, and to demand repayment of that amount. The Chief Commissioner also sought payment of an amount of $1400 in penalty tax. 2 The facts of the matter are not in dispute. On 31 October 2001 Ms Rositano entered into a contract for the purchase of a property at Kingswood ("the property") for the sum of $233,500.00. On 5 November 2001 she made an application under the FHOGA for the grant of the sum of $7,000 in respect of her purchase of the property. On 3 December 2001, the Chief Commissioner approved the payment of the grant. 3 Completion of the purchase of the property took place on 12 December 2001. On 16 December 2001 Ms Rositano suffered some injuries as a result of a motor vehicle accident. Under the terms of the purchase agreement, the vendors were given six weeks to vacate the property. Ms Rositano was entitled to possession of the property on 23 January 2002. She moved into the property some time in early February 2002. 4 On 27 March 2002, Ms Rositano entered into a Property Management Agreement with PRD Nationwide Penrith to rent out the property. On or about 7 April 2002 she moved out of the property and into her parent's residence. On 12 April 2002, the property was rented out to tenants. 5 By letter dated 11 August 2003, the Chief Commissioner sought from Ms Rositano a relevant statutory declaration concerning her residence and evidence of ownership. On 14 August 2003, Ms Rositano wrote to the Chief Commissioner and advised that she was the owner of the property and that she first occupied it as her principal place of residence in early February 2002. She also stated that because of her injuries and financial circumstances, she moved in with her parents on 7 April 2002. 6 On 17 September 2003, the Chief Commissioner issued a notice under section 45 of the FHOGA seeking repayment of $8,400.00, which included the initial grant of $7,000 together with penalties. This reversed the Chief Commissioner's earlier decision to make the relevant grant under FHOGA. The decision to reverse the earlier decision was made under section 23(1) of the FHOGA. 7 On 29 September 2003, Ms Rositano lodged an objection to the decision under section 25(1) of the FHOGA. On 22 December 2003, the Chief Commissioner determined the objection by wholly disallowing it in accordance with the provisions of section 26(1)(a) of the FHOGA. Accordingly the previous decision made under section 23(1) of the FHOGA, reversing the original grant, was affirmed. On 19 February 2004, Ms Rositano filed an application for review of the Chief Commissioner's decision with this Tribunal. 8 The solicitor for the Chief Commissioner, Mr Twohill, has advised that the Chief Commissioner does not wish to defend the proceedings. Each party has consented to the matter being determined on the basis of the written material filed with the Tribunal without the need for either party to attend a hearing. Decision and reasons 9 The issue in this matter is whether or not Ms Rositano has satisfied the eligibility criterion provided for under section 12 of the FHOGA. The provisions of that section were the subject of the recent Appeal Panel decision in the matter of Chief Commissioner of State Revenue -v- Ferrington (GD) [2004] NSWADTAP 41. In that matter the Appeal Panel considered a number of decisions that had dealt with the meaning of the expression "principal place of residence" and set out a number of principles apparent from those authorities. The Appeal Panel stated at paragraph 42 of its decision: "42 First, the words "principal place of residence" should be given their ordinary meaning in the context in which they appear … Secondly, consideration of whether a person has been residing or occupying premises as their principal place of residence is to be assessed objectively, in the light of the circumstances relating to the actual occupation of the dwelling … Thirdly, the intention of the person concerned, gauged objectively, is relevant but not determinative of the issue ... Fourthly, to occupy a home as his or her principal place of residence a person's occupation must have a degree of permanence to it: a connection to a place of residence of a transient, temporary, contingent or passing nature is not sufficient, nor is occupation for some other purpose … Fifthly, the short length of a person's residence, while relevant, is not determinative of the issue … This is so since a recipient's occupation of a home, while short, may have the requisite degree of permanence to it. But that will not happen if, when considered objectively, the occupation was transient, temporary, contingent or of a passing nature, or for some other purpose. One may occupy premises for a short time on a transient, temporary, or contingent basis, but one can also occupy for a short time as one's principal place of residence. It is the nature of that occupation which provides the element of permanence. The fact that a period of actual occupation is short, as in the present case, will in practice make it harder for a recipient to show that the occupation was as his or her principal place of residence, but it will not make it impossible, as Gaines demonstrates. Sixthly, the reasons for a person's departure from the home must be both reasonable and adequately explained when considered objectively in the light of their personal circumstances … "whether the reasons for not residing at the property were as a result of matters entirely out of the control of Ms Rositano" was a factor to be considered [but] should not be read as stipulating a requirement that the reasons for departure must be entirely out of that person's control." 10 In the present matter the evidence supports Ms Rositano's argument that it was her intention to occupy the property as her principal place of residence. Ms Rositano's evidence includes medical certificates that support her assertion that she suffered injuries in the 16 December 2001 motor vehicle accident. These injuries prevented her from undertaking the work that was essential to her maintaining repayments of the loan taken out for the purchase of the property. Her evidence is that her financial status and physical condition left her with little option but to move back into her parent's home and to rent out the property to help with the loan repayments. 11 There is no suggestion that the occupation was for any other purpose. While there is no doubt that the length of her occupation was short, I am satisfied that there was the requisite degree of permanence to it. The occupation was not "of a transient, temporary, contingent or passing nature". I also consider that Ms Rositano's reasons for departure from the property are both reasonable and adequately explained. 12 Accordingly it is my view that Ms Rositano has satisfied that criteria set out in section 12 of the FHOGA. It follows that the Chief Commissioner's decision that is the subject of this application ought to be set aside. In its place the decision should be made that Ms Rositano is entitled to the First Home Owner's Grant. Order 1. The decision under review is set aside 2. In substitution the decision is made that Ms Rositano is entitled to the First Home Owner's Grant.