CITATION: Bramley -v- Chief Commissioner of State Revenue [2003] NSWADT 135 DIVISION: General Division APPLICANT PARTIES: Marilyn Bramley Chief Commissioner of State Revenue FILE NUMBER: 023303 HEARING DATES: On the papers SUBMISSIONS CLOSED: 03/11/2003 DATE OF DECISION: 06/06/2003 BEFORE: Needham J - 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 : Conveyancing Act 1919 First Home Owners Grant Act 2000 CASES CITED: Nullagine Investments Pty Limited v. The Western Australian Club Incorporated (1993) 177 CLR 635 APPLICANT REPRESENTATION: In person RESPONDENT G Van Emmerik, agent ORDERS: 1. The decision of the Commissioner not to approve the applicant's application for a first home owner grant is set aside; 2. In substitution for the Commissioner's decision, a decision is made to approve the applicant's application for a first home owner grant. Introduction 1 Ms Marilyn Bramley, the applicant in these proceedings, seeks review of the decision of the respondent not to pay her $7,000 by way of First Home Owner Grant in relation to her purchase of a house property at 34 Kellas Street, Lismore Heights. 2 The proceedings were directed by Deputy President Hennessy on 21 January 2003 to be decided on the papers. Submissions closed on 11 March 2003; however, the papers were not forwarded to me until mid-April 2003 and I have endeavoured to provide this decision as quickly as possible, since Ms Bramley's application for review was lodged on 20 December 2002. As it was, a further submission was received from the respondent dated 9 April 2003. Facts 3 Ms Bramley purchased a property at 34 Kellas Street, Lismore Heights by contract dated 21 June 2002 for the sum of $94,000. The property is a duplex, intended for herself and her daughter to be able to reside close together and to enable her daughter, a person with high functioning autism, to obtain support yet to maintain her independence. She sought a First Home Owner Grant pursuant to the First Home Owner Grant Act 2000. The relevant grant, if she were successful, would be $7,000. 4 Ms Bramley's father died in 1961. He died intestate and accordingly Ms Bramley was a statutory beneficiary of his estate. For reasons which are not disclosed in detail, the estate was not finalised until 17 April 19991 when land at 144 Hill Street, Muswellbrook, was transmitted into the names of Ms Bramley, her mother and her sisters. Ms Bramley's mother lives in the Muswellbrook property, and Ms Bramley has not lived there since 1968. The Muswellbrook property is held in the following proportions:- - Ms Bramley - 2/15ths - Ms Bramley's mother, Betty Bramley; 7/15ths - Ms Bramley's sisters Jennifer Goldsworthy, Dianne Gumb, and Lesley Bramley - 2/15ths each 5 Ms Bramley, quite properly, disclosed the interest in her mother's house on her application for the First Home Owner Grant. Her application included an explanation of how she came to have an interest in the property, and a statutory declaration from her mother that Ms Bramley had never contributed to the running expenses or maintenance of the Muswellbrook house. 6 The respondent rejected Ms Bramley's application. On 29 August, 2002, she objected to the decision and the application was reconsidered by the respondent on 10 October 2002. The original decision of the respondent was confirmed. 7 Ms Bramley now seeks a review of the decision of the respondent by way of application to this Tribunal. Legislation 8 A first home owner grant is payable under the First Home Owner Grant Act, 2000 ("the Act") if a person complies with the eligibility criteria and the purchase of the home is an "eligible transaction" (s 7). The transaction appears to be an eligible one, and Ms Bramley appears to fulfil the eligibility criteria save, it is alleged by the respondent, for Criterion number 4 which appears in s 11 of the Act. That section provides, relevantly:- "11. Criterion 4—Applicant (or applicant's spouse) must not have had relevant interest in residential property (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... " 9 Section 5 of the Act deals with the definition of "relevant interest" and provides, relevantly:- "5 Ownership of land and homes (1) A person is an "owner" of a home or a "home owner" if the person has a relevant interest in land on which a home is built. (2) Each of the following is, subject to subsection (3), a "relevant interest" in land: (a) an estate in fee simple in the 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 ..." Review by the ADT 10 Section 28(2) of the Act provides that "on review before the Tribunal, the applicant's and respondent's cases are not limited to the grounds of the objection." Section 28(3) of the Act also provides that the applicant has the onus of proving the applicant's case in an application of review. Consideration 11 The respondent based its decision to decline the application for a grant on the basis of s 5(3) - that Ms Bramley had a relevant interest in land and that she had a right to immediate occupation of the land. The applicant submits that she does not, and has not, had any right to immediate occupation and points out that it is, in fact, impossible for her to live there with her daughter, as her mother occupies the Muswellbrook house and it is only a two-bedroomed property. 12 The question in this matter is whether sub-s 5(3) exempts Ms Bramley from the exclusion from eligibility by reason of her part-ownership of the Muswellbrook property. In other words, is her interest in the Muswellbrook property a "relevant interest?" Ms Bramley says that it is not a "relevant interest" because she did not, and has not, a right to immediate occupation to the land, it being her mother's home. 13 The respondent, in its consideration of the objection, dealt with this question in the following way:- "The Applicant's claim that she did not have a right to immediate occupation of the land or will within the 12 months or at all in the future is a personal decision and choice. The Applicant is not prevented from immediate occupation if the Applicant desires to at any time". 14 The applicant responds to this in her letter, undated but received by the Tribunal on 13 February 2003, by listing the practical reasons preventing her from taking up occupation in the Muswellbrook property. In practical terms, of course, it is inappropriate for Ms Bramley to evict her mother (who is in her 70s) and for her to move herself and her daughter to a town where she had unfortunate experiences in her childhood and young adulthood. Ms Bramley describes the prospect of living in the Muswellbrook house as "totally untenable". 15 The Act's effect is that Ms Bramley's interest in the Muswellbrook house will disqualify her from eligibility for a First Home Owner Grant unless she has "a right to immediate occupation of the land" (s 5(3)). The reference to "land" includes the house erected on the land. In law, what does that mean? 16 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, par [1425], 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. Ms Bramley sets out the agreement between herself, her mother and her sisters in her letter of June 21 2002 to the respondent in her original application for a grant as follows:- "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". 17 It is possible for co-owners to agree that the general legal position relating to rights to occupancy be altered. In Nullagine Investments Pty Limited v. The Western Australian Club Incorporated (1993) 177 CLR 635, it was agreed between co-owners that each party to a contract would occupy certain portions of the building to the exclusion of the other. This arrangement did not, however, affect each party's statutory rights arising out of co-ownership - in this case, the right of one party to seek an order for partition or sale of the property under the Western Australian equivalent of s 66G of the Conveyancing Act (NSW). One co-owner may exclude the other; in certain circumstances, that exclusion gives the non-occupying owner a right to occupation rent, in lieu of the right to occupation, immediate or otherwise. A wrongly excluded co-owner may sue in ejectment; however, Ms Bramley does not maintain she has been wrongly excluded, rather that she has agreed with her mother and the other co-owners that her mother has sole occupancy of the premises. 18 The "understanding" referred to by Ms Bramley in her letter of 21 June 2002 is broadly stated. It does, in my view, enunciate the principles set out in the preceding paragraph. In practical terms, the courts would have regard to an agreement allowing a widow of an intestate to remain in possession of the property, whether under contract law, in equity (given that Ms Bramley's mother has paid all outgoings) or even testator's family maintenance proceedings. 19 In my opinion, Ms Bramley did not at any time have the right to "immediate possesion" of the property, notwithstanding that the agreement between her and her mother is not written or expressed in traditional legal language. Ms Bramley would be able to take proceedings for partition or sale of the property pursuant to s 66G if she so wished, but that would not give her a right to immediate possession. Conclusion 20 In these most unusual circumstances, I am prepared to grant the application for review of the decision. Order 21 The decision of the Commissioner not to approve the applicant's application for a first home owner grant is set aside. 22 In substitution for the Commissioner's decision, a decision is made to approve the applicant'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.