Elskaf v Chief Commissioner of State Revenue [2005] NSWADT 132

CITATION: Elskaf v Chief Commissioner of State Revenue [2005] NSWADT 132 DIVISION: General Division APPLICANT PARTIES: Ahmed Elskaf RESPONDENT Chief Commissioner of State Revenue FILE NUMBER: 043042 HEARING DATES: 26 October 2004; 4 February 2005 SUBMISSIONS CLOSED: 04/02/2005 DATE OF DECISION: 14/06/2005

BEFORE: Needham J SC - 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 : Environmental Planning and Assessment Act 1979 First Home Owners Grant Act 2000 CASES CITED: REPRESENTATION: In person B Baker, solicitor ORDERS: The decision of the Chief Commissioner of State Revenue to reverse the decision to pay a grant of $7,000 to the applicant, together with a penalty of 30%, is affirmed

REASONS FOR DECISION 1 This matter has had a complex route to a final hearing. Mr Ahmed Elskaf ("Mr Elskaf" or "the applicant") made application to the Tribunal on 17 February 2004, seeking to review the decision of the Chief Commissioner of State Revenue ("Chief Commissioner") requesting repayment of a grant made to Mr Elskaf under the First Home Owner Grant Act 2000, and the payment of a penalty. 2 That decision was made by letter of 8 August 2003. The application was out of time. After a hearing on 6 May 2004, I decided to allow Mr Elskaf's application to proceed. I made directions that his documents were to be filed and served before 4 June 2004, and that non-compliance with directions was prima facie a ground for dismissal. The matter was adjourned twice before being listed for hearing on 26 October 2004. 3 On that date Mr Elskaf appeared in person, with some assistance from a non-qualified relative, and Ms Baker, of the Crown Solicitor's Office, appeared for the respondent. The matter was part-heard, and adjourned to 4 February 2005 at 2 pm with directions as to service of further material in support of the applicant's claim. The reasons for the adjournment will become clear as I recite the facts of this case. The Facts 4 Mr Elskaf purchased a property at 46 North Liverpool Avenue, Heckenberg on 11 April 2001. On 10 April 2001 he entered into a Management Agency Agreement with Borg Partners Real Estate for a period of six months. He obtained a tenant, a Mr Smith, who lived there from 19 May 2001 for a time which is not clear on the evidence, but appears to be until 11 April 2003. Mr Smith eventually left the premises owing rent and having caused damage to the property. Mr Elskaf obtained an order of the Consumer, Trader and Tenancy Tribunal against him in the sum of $3,650.00. 5 On 2 May 2001 Mr Elskaf obtained a grant under the First Home Owners Grant Act 2000 in the amount of $7,000. 6 It was a condition of the grant that the applicant satisfy the eligibility criteria set out in the Act. The respondent says that he does not satisfy the criterion set out in s 12 of the Act, the residence criteria. At the relevant time, s 12(1) provided: - "12. Criterion 5 - Residence Requirement 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 or a longer period approved by the Chief Commissioner". 7 The relevant 12-month period is from 11 April 2001 to 10 April 2002. 8 The respondent, having made enquiries of Mr Elskaf, was not satisfied of his compliance with criterion 5 and sought return of the grant, in addition imposing a penalty of 30%. 9 The applicant says that he lived in the property from the time of purchase. He says that, while he did rent the house on the property to Mr Smith, he lived in a granny flat attached to the garage of the property and that the granny flat was his principal place of residence for the relevant period under the Act. 10 Mr Elskaf says that he shared the part of the property which he occupied with Mr Ian Lamont, a friend of his who is now living in Brisbane. He says that he moved into the granny flat, rather than the main house, because of tight financial circumstances caused by losing his job in a company closure. 11 In support of his contention that he resided at the property, the applicant tendered (exhibit A) the Notice of Order from the Consumer, Trader and Tenancy Tribunal dated 20 August 2003; a tax invoice from his lawyers for acting on the purchase addressed to him at the property dated 23 April 2001; a statement of account for "Landlords Residential Property Insurance" from CGU, also addressed to him at the property and issued on 30 September 2001; a Sydney Water bill for charges for the period 1 Jul 2002 to 30 September 2002, addressed to him at the property. 12 Mr Elskaf wrote a letter on 30 June 2003 to the respondent in response to the preliminary enquire as to his residence at the property. He said: - "While my stay at the property I shared the house with couple of my colleagues and one of them was Mr Ian Lamont, who had the electricity in his name at that time, till now. When I insured the building the insurance consultant asked me if I was going to share the property with any body. I said yes, so they included my contents and rent default, which was as boarding, but at all time I resided at (… copy cut off …) till February 2003 … Most of my mail have been lost or misplaced and I'm still trying to find more document to support, that I was residing at my property in the first year of the purchase". 13 There is no mention in that letter of a granny flat or an occupiable garage, nor of the tenancy of Mr Smith. 14 Mr Elskaf was cross-examined on his evidence. He gave evidence that the granny flat had a shower and a toilet, as well as a basic kitchen, and that it was part of the same structure, but separated from, the lock-up garage. He says that he shared the granny flat with Mr Ian Lamont, and after Mr Lamont left, Mr Sam Chanson moved in. He says that while the room was not large, the beds were separated by what appeared to be a room divider. He was unable to locate either Mr Lamont, Mr Chanson or Mr Smith to corroborate his evidence. 15 Mr Elskaf explained the shortage of mail addressed to the property by saying that he didn't want mail sent to the property while tenants were living there, so he had all his important mail sent to his father's address. He had most of his meals at his mother's. He did not change his driver's licence address to that of the property, nor did he register his new address with the Electoral Commission. 16 Ms Baker, appearing for the respondent, cross-examined Mr Elskaf about the tenancy to Mr Smith. The residential tenancy agreement gave the tenants the right to occupy the house, together with "storeroom and lock-up garage". There was no mention of a granny flat which was excluded from the garage. The Condition Report for the tenancy does not mention the granny flat. 17 The above summarises the evidence given by Mr Elskaf at the first hearing on 10 December 2004. I raised with him the fact that there was very little concrete evidence upon which he could rely to show that he occupied the premises as his principal place of residence. Over the objection of the respondent, and on considering s 72 of the Administrative Decisions Tribunal Act, I allowed Mr Elskaf an adjournment to put on documentary evidence to support his claim that he lived in the granny flat of the property. 18 On reconvening the matter on 4 February 2005, the applicant tendered an invoice from Laptop Upgrades addressed to Mr Elskaf at the property dated 14 February 2002, and noting the property as a delivery address. He also tendered a quotation from Bridge Discount Furniture which purports to show that furniture was delivered to the property in May 2001, but which on closer examination contains the words: - "Mr Ahmed Elskaf purchased furniture round May year 2001". That document does not bear much weight. 19 The applicant also sought to put on further evidence. 20 The new evidence from the respondent was to tender a s 149 Environmental Planning and Assessment Act 1979 certificate in relation to the property, dated 16 February 2001. It appeared to be the s 149 certificate from the contract for sale by which Mr Elskaf purchased the property. That certificate, along with a more recent s 149 certificate dated 25 January 2005 and correspondence between the respondent and Liverpool City Council, showed that no approval for a granny flat had ever been granted by the Council. The respondent also tendered a sewerage diagram that showed that there was only one sewer line to the property and that that line went to the house. 21 The respondent also tendered an envelope, containing documents sent to Mr Elskaf at the property, where he says he is now living, which was returned "Return to Sender: Wrong Address". Consideration 22 The weight of the evidence in this case is strongly on the side of the respondent. Apart from the items of correspondence mentioned above, there is no indication whatsoever that Mr Elskaf occupied the premises, let alone as his principal place of residence. None of the documentation supports an inference that he lived at the premises. None of the persons who were aware of his alleged occupation have come forward to corroborate his story. 23 The applicant has the onus of proof in these proceedings, and he has not discharged it. 24 Accordingly, I uphold the decision of the Chief Commissioner in seeking the return of the grant, and dismiss the application. In the circumstances, I am not inclined to make any changes to the penalty of 30% levied by the respondent. 25 The respondent, at the hearing on 4 February 2005, made an argument that it was not possible for the applicant to succeed, even if my view of the facts differs from that given above, due to the definition of the word "home" in the Act. That definition appears in s 4, and provides: - "A "home" is a building (affixed to land) that: - (a) may lawfully be used as a place of residence; and (b) is, in the Chief Commissioner's opinion, a suitable building for use as a place of residence". 26 The Chief Commissioner argued that the granny flat, not being approved by Council for dual occupancy housing pursuant to cl 6 of the Liverpool Local Environmental Plan, could not fall within s 4 of the Act. 27 While, given my finding on the facts, it is not strictly necessary for me to determine this issue, I agree with this submission. As the garage or granny flat was not approved for occupation, it could not be "lawfully used as a place of residence", and an application relating to occupation of only that part of the property as a whole could not succeed.