Wall v Chief Commissioner of State Revenue [2009] NSWADT 142

CITATION: Wall v Chief Commissioner of State Revenue [2009] NSWADT 142

DIVISION: Revenue Division

APPLICANT Jaime Vanessa Wall PARTIES: RESPONDENT Chief Commissioner of State Revenue

FILE NUMBER: 086055

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 29 May 2009

DATE OF DECISION: 16 June 2009

BEFORE: Handley R - Deputy President

CATCHWORDS: First Home Owners Grant – eligible transaction

First Home Owner Grant Act 2000 LEGISLATION CITED : Real Property Act 1900 Duties Act 1997 State Revenue Legislation Amendment Act 2008

Chief Commissioner of State Revenue v Clapoudis [2008] NSWADTAP 7 CASES CITED: Chief Commissioner of State Revenue v Powell [2008] NSWADT 289 Chief Commissioner of State Revenue v Aldridge & Anor [2003] NSWADTAP 50 Bates v Chief Commissioner of State Revenue [2004] NSWADT 13

APPLICANT C Wall, agent REPRESENTATION: RESPONDENT A Gerard, solicitor

ORDERS: The decision under review is affirmed.

REASONS FOR DECISION 1 Jaime Wall has applied to the Tribunal for the review of a decision of the Chief Commissioner of State Revenue ('the Respondent') to refuse her application for a First Home Owner's Grant ('FHO Grant') on the ground that there was no eligible transaction under s 13 of the First Home Owner Grant Act 2000 ('the FHOG Act') for which a grant can be paid. The Facts 2 On 30 June 2005, Ms Wall's mother died. She was the registered owner of a property at Casey Crescent, Kariong, NSW ('the property'). On 16 June 2006, probate was granted to the Public Trustee. On 22 February 2007, the Public Trustee lodged a Transmission Application with the NSW Department of Lands pursuant to s 93 of the Real Property Act 1900 seeking the registration of Ms Wall and her father, Colin Wall, as registered proprietors of the property as tenants in common in shares of 95% and 5%, respectively, consequent upon the death of Ms Wall's mother. Stamp Duty of $10 for the stamping of the Transmission Application was paid as required by s 63 of the Duties Act 1997. Pursuant to this application, on 8 March 2007, the Registrar General issued a Certificate of Title for the property certifying the registration of Ms Wall and her father as the registered proprietors of the property as tenants in common in shares of 95% and 5% respectively. 3 On 18 October 2007, Ms Wall's solicitors lodged an application for a FHO Grant on her behalf in respect of the property. Ms Wall's father has previously been registered as the proprietor of a property at King Street, Umina Beach, which was acquired on 8 November 1991. By letter dated 19 November 2007, the Respondent notified Ms Wall's solicitors that the application for a FHO Grant had been refused because her father had previously held a relevant interest in property, and because no consideration was paid for the property at Kariong. On 3 January 2008, Mr Wall wrote to the Respondent, objecting to this decision and seeking a reconsideration. On 5 January 2008, Ms Wall wrote to the Respondent in similar terms. 4 By letter dated 30 April 2008, the Respondent notified Ms Wall that he had disallowed her objection because she did not acquire her share of the property as a result of an 'eligible transaction'. On 18 June 2008, Ms Wall wrote to the Tribunal seeking a review of this decision and, on 27 June 2008, she lodged a formal 'Application for Review of a Decision'. 5 Ms Wall's application was the subject of Directions Hearings on 30 July 2008, 22 October 2008 and 20 May 2009, at which directions for the filing and serving of documents were made. The parties agreed that on the filing of all submissions and other documents, the matter could be determined by the Tribunal 'on the papers'. The Legislation 6 The FHOG Act establishes a scheme to assist persons buying or building their first home by providing them with a grant. Pursuant to s 7, to be eligible for a grant, an applicant must satisfy the eligibility criteria contained in Division 2 of Part II of the Act, including relevantly s 11, and the purchase of the property for which the grant is sought must be an "eligible transaction", as defined in s 13. 7 At the time of transfer of ownership of the property, ss 11, 13 and 15 stated 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: