Hardy v Chief Commissioner of State Revenue [2009] NSWADT 168

CITATION: Hardy v Chief Commissioner of State Revenue [2009] NSWADT 168

DIVISION: Revenue Division

APPLICANT Robert Stanley Hardy and Sui Lin Lui PARTIES: RESPONDENT Chief Commissioner of State Revenue

FILE NUMBER: 086093

HEARING DATES: 16 February 2009

SUBMISSIONS CLOSED: 16 February 2009

DATE OF DECISION: 30 June 2009

BEFORE: Hirschhorn M - Judicial Member

CATCHWORDS: Duties - Mortgage Duty

LEGISLATION CITED : Duties Act 1997 Taxation Administration Act 1996

APPLICANT In person REPRESENTATION: RESPONDENT A Tsekouras, barrister

ORDERS: The objection decision of the Respondent under review is affirmed.

REASONS FOR DECISION Introduction 1 The Applicants seek review of an objection decision of the Respondent on 6 August 2008 that wholly disallowed an objection made by the Applicant. The objection decision confirmed that mortgage duty was payable in respect of a mortgage dated 18 January 2008 that secured certain advances to the Applicants from HSBC Australia Limited ("the Loans"). 2 The application for review by the Applicants identified the relevant decision for review as a decision of the Respondent on 2 May 2008. On this date an initial letter was sent by the Office of State Revenue to the Applicants denying their request for a refund of mortgage duty of $1,907.00 in respect of the Loans. 3 As an initial matter, the Tribunal only has jurisdiction (pursuant to Section 96 of the Taxation Administration Act 1996 ("TAA")) to review the objection decision of the Respondent of 6 August 2008 however as this decision dealt with the same subject matter as the letter of the OSR dated 2 May 2008 and the matter proceeded on this basis. 4 The Applicants relied on two sets of written submissions together with certain attached documents, some of the documents contained in the Section 58 documents filed by the Respondent and a booklet of Standard terms and conditions provided to them in respect of their Loan facility ("the Booklet"). 5 The Respondent relied on the Section 58 documents, a bundle of documents entitled "Index of Further Evidence", a bundle entitled "Material in support of Submissions" and written submissions. Facts 6 On 23 October 2007, the Applicants received a letter of offer of a loan facility from HSBC Australia Limited ("the Letter"). The offer made by the Bank was made according to the terms contained in the Letter as well as those contained in a booklet entitled "HSBC Home and Investment Property Loans" ("the Booklet"). 7 The total credit under the facility was $489,000.00 which consisted of two loans. Loan 1 8 The first loan was called "Premier Investment Introductory Variable" and was in the amount of $419,000.00 ("Loan 1"). 9 For the first 12 months following draw down, a variable interest rate less 1.08% was to apply and thereafter the Bank's variable rate applied (less a further discount if the HSBC Premier Package applied). 10 Loan 1 was for a term of 30 years with monthly repayments. The first 3 years of Loan 1 required only interest payments to be made. Loan 2 11 The second loan was called "Premier Investment Fixed 3 years" and was in the amount of $70,000.00. 12 For the first 3 years, a fixed rate of 7.87% applied less a discount of 0.10% per annum if the HSBC Premier Package applied. After this Loan 2 reverted to the Bank's variable rate. 13 Loan 2 was for a period of 30 years with monthly repayments. The first 3 years of Loan 2 required only interest payments to be made. Security 14 The security for Loan 1 and Loan 2 was to be that set out on page 16 of the Letter as follows: (a) A registered first mortgage of a unit in Campbell Street, Northmead given by the Applicants was to be taken; (b) A registered first mortgage of a property at Murray Street, Northmead given by the Applicants was to be taken; and (c) All existing security for the Applicant's obligations to the Bank.