Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Spargo v Chief Commissioner of State Revenue [2014] NSWCATAD 142 Hearing dates: 3 September 2014 Decision date: 16 September 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: Dr H R Sorensen, Senior Member Decision: Decision under review affirmed Catchwords: ADMINISTRATIVE LAW - Civil and Administrative Tribunal Act 2013 (NSW) - regional relocation home buyers grant - review decision refusing grant Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Regional Relocation Grants Act 2011 (NSW) Regional Relocation Grants Order 2014 (NSW) Regional Relocation (Home Buyers Grant) Amendment Act 2013 (NSW) Cases Cited: BBLT Pty Ltd v Chief Commissioner of State Revenue (2003) 54 ATR 323 Commissioner of Taxation v Futuris Corp Ltd (2008) 237 CLR 146 FCT v Wade (1951) 84 CLR 105 Category: Principal judgment Parties: Phillip Spargo and Donna Spargo (Applicant) Chief Commissioner of State Revenue (Respondent) Representation: Counsel A Rider (Respondent) P Spargo (Applicant in person) Crown Solicitor's Office (Respondent) File Number(s): 1410241 reasons for decision Introduction and background 1This proceeding is an application pursuant to s 45 of the Regional Relocation Grants Act 2011 (NSW) for an administrative review under the Administrative Decisions Review Act 1997 (NSW). The decision for review is the decision of the Chief Commissioner refusing the applicants' application for a regional relocation home buyers grant. 2Subject to a number of statutory restrictions, a $7000 regional relocation home buyers grant under the Regional Relocation Grants Act is available to persons relocating from a metropolitan home to a regional home. 3The applicants applied for the grant in relation to their purchase of Unit 12, 12 Propane Street, Albion Park on the basis Albion Park was the "regional home" and their previous home, 14 Spears Street, Horsley, was the "metropolitan home". The application is dated 17 January 2014. 4The Chief Commissioner's decision refusing the application was notified to the applicants by letter dated 17 February 2014. The applicants' objection to that decision was disallowed. The determination disallowing the objection was notified to the applicants by letter dated 18 March 2014. 5An objector is permitted to apply for an administrative review of the decision to which the objection was made if dissatisfied with the Chief Commissioner's determination of the objection: Regional Relocation Grants Act, s 45(1)(a). The applicants' application for a review was filed 9 May 2014. 6The grant was refused on the basis that Albion Park (the regional home) did not satisfy the requirement of the Regional Relocation Grants Act that it be at least 100 kilometres from the metropolitan home (Horsley). The statutory 100 kilometres requirement came into force on 1 January 2014. 7In their application for a review the applicants claim it is unfair that they were denied the grant because the 100 kilometres requirement became law after exchange of the contracts to purchase Propane Street. The contract is dated 16 December 2013. Facts and chronology 8The Regional Relocation Grants Act was formerly the Regional Relocation (Home Buyers Grant) Act 2011 (NSW). This change in name was enacted by Sch 1[2] of the Regional Relocation (Home Buyers Grant) Amendment Act 2013 (NSW). In addition to other amendments, the Amending Act added as one of the requirements that must be satisfied in order to qualify for a grant, a requirement that the regional home must be at least 100 kilometres from the metropolitan home. The Amending Act was assented to on 20 November 2013. 9On 21 November 2013 the Chief Commissioner caused to be posted on the Office of State Revenue website an update that the Amending Act received assent on 20 November 2013. The post listed a number of amendments that "take effect from 1 January 2014". One of amendments listed was the 100 kilometres requirement. A hard copy of the post is in evidence as Exhibit R2. 10On 16 December 2013 the applicants exchanged contracts for the purchase of Albion Park. As already noted, the contract is dated 16 December 2013. A Google earth print-out (Exhibit R3) shows the straight line distance between Albion Park and Horsley is about 10 kilometres. 11On 1 January 2014 the 100 kilometres requirement (Regional Relocation Grants Act, s 15(2)(a1)) came into force. 12On 17 January 2014 the applicants completed the purchase of Albion Park. The declaration in the application form for the grant is dated 17 January 2014. 13On 31 January 2014, the Chief Commissioner received the applicants' grant application. Regional Relocation Grants Act 14Pursuant to s 5 of the Act- A regional relocation home buyers grant is payable on application under this Act in respect of the purchase of a home if: (a) the applicant is an eligible applicant, and (b) the purchase is an eligible home relocation. 15Section 8 provides- The purchase of a home by an applicant is an eligible home relocation if the requirements set out in this Subdivision are satisfied. The "this Subdivision" is Subdivision 2 of Part 2 and comprises ss 9-17A. The terms of ss 9(1), 10, 11, and 15(1) and (2), so far as relevant in the present matter, follow. 16Section 9(1)- The applicant must purchase a regional home. 17Section 10- (1) The purchase of the regional home by the applicant must commence on or after 1 July 2011 and before 1 July 2015. (2) For the purposes of this Act, a purchase of a regional home "commences": (a)in the case of a transfer of land that is made pursuant to an agreement for the sale or transfer of land - on the date the agreement is entered into, or (b)... 18Section 11- (1) The purchase of the regional home must be completed. (2) For the purposes of this Act, a purchase of a regional home is "completed" when the applicant becomes entitled to possession of the land purchased and, if the interest in the land acquired by the applicant is registrable under a law of the State, the interest is so registered. 19Section 15 - (1) The applicant must relocate from a metropolitan area. (1A) ... (2) An applicant relocates from a metropolitan area if: (a) ..., and (a1) the metropolitan home is at least 100 kilometres in a straight line from the regional home, and (b) ... Section 26A 20With effect on and from 1 January 2014 the Amending Act inserted into the Act, s 26A, which is in these terms- (1) In this section: "distance requirement" means, in respect of an eligible relocation, a requirement that any of the following be at least 100 kilometres from a specified place in a metropolitan area: (a) a regional home, (b) a principal place of residence, principal place of employment or principal place of business in a regional area. "eligible relocation" means an eligible home relocation, an eligible employment relocation or an eligible self-employment relocation. (2) The Minister may by order published on the NSW legislation website specify circumstances in which a relocation is taken, for the purposes of this Act, to be an eligible relocation despite a distance requirement not being met. 21The only Order made by the Minister pursuant to s 26A(2) is the Regional Relocation Grants Order 2014 (NSW) which commenced on 12 May 2014. Clause 4(1) to (3) provides- (1) This clause applies to a relocation that is not an eligible relocation only because a distance requirement is not met. (2) This clause does not apply in respect of an application made before the commencement of this Order. (3) A relocation is taken to be an eligible relocation if each specified place in the metropolitan area (as referred to in the distance requirement): (a) is at least 50 kilometres in a straight line from each relevant regional place, and (b) is in a local government area that is not adjacent to any local government area in which the relevant regional place is located. (4) In this clause: ... 22The Order does not assist the applicants in this instance because, (a) the application (lodged in January 2014), was made before the commencement of the 2014 Order (cl 4(2)); and (b) the applicants do not dispute that the distance of Albion Park from Horsley is less than 50 kilometres (cl 4(3)). Schedule 1 23Clause 7 of Sch 1 of the Regional Relocation Grants Act is a transition provision. It is an amendment made by Sch 1[35] of the Amending Act with effect on and from 1 January 2014. Clause 7 reads: (1) Section 15(2)(a1), as inserted by the amending Act, applies in respect of the purchase of a regional home that occurred before the commencement of that paragraph but not if the Chief Commissioner has already received an application for the payment of a grant in respect of the purchase. (2) Section 26A, as inserted by the amending Act, applies in respect of the purchase of a regional home if section 15 (2) (a1) applies in respect of the purchase. 24It is plain from cl 7 that the 100 kilometres requirement (s 15(2)(a1)) applies to any grant application made on or after 1 January 2014 even if the purchase of the regional home occurred (or was completed) prior to that date. Consideration 25As is clear from s 11(1) of the Regional Relocation Grants Act, an application for a grant cannot be made until after the purchase of the regional home is completed. That is, the date of the contract or exchange is not a matter relevant in determining whether a purchase is "an eligible home relocation". 26The application for the grant was made after 1 January 2014 and therefore by dint of cl 7(1) of Sch 1 and s 15(2)(a1), the 100 kilometres requirement applies. The applicants accept that the 100 kilometres requirement is not satisfied at the time of the application. Accordingly the purchase of Albion Park is not an eligible home relocation. That outcome is not affected or rendered nugatory by consequences visited upon the applicants in the circumstances that obtained and which Mr Spargo refers to as "unfairness". 27The unfairness asserted by the applicants arises from the fact that immediately prior to committing to the purchase of Albion Park Mr Spargo was, so it seems, unaware of the new 100 kilometres requirement. 28Mr Spargo pointed out from the bar table that the application form he completed did not include any reference to the 100 kilometres. He said that his online searches to determine or confirm that they (the applicants) were eligible for the grant did not find any mention of the new 100 kilometres requirement. According to Mr Spargo the purchase was undertaken and made "in the knowledge" that they were eligible for the $7000 grant. They are now, said Mr Spargo, left in a difficult financial circumstance because costs associated with the purchase were incurred and charged to a credit card in the expectation of receiving the grant to cover that credit card debt. 29I note the application form used by Mr Spargo was the July 2011 version - which explains why it made no mention of the 100 kilometres. Mr Spargo was not able to recall when he downloaded that form from the OSR website, but said he may have done so when researching the grant scheme prior to proceeding with the Albion Park purchase. 30Pursuant to s 26(1) of the Act- The Chief Commissioner is to decide whether a regional relocation grant is payable in respect of an application. 31In any given case the Chief Commissioner is obliged to make a s 26(1) decision in accordance with the terms of the Act; the duty is "to administer the law according to its terms": Commissioner of Taxation v Futuris Corp Ltd (2008) 237 CLR 146 at [55]. Thus a grant is not payable in respect of the purchase of a home unless, as required by s 5(b) of the Act, "the purchase is an eligible home relocation." The Act does not confer on the Chief Commissioner any general discretion to ignore or not apply s 5(b). Further, any conduct of the Chief Commissioner in misapplying or misadvising on the operation of the Regional Relocation Grants Act would not of itself preclude an imperative provision of the Act from operating according to its terms: BBLT Pty Ltd v Chief Commissioner of State Revenue (2003) 54 ATR 323 at [111]; FCT v Wade (1951) 84 CLR 105. Conclusions 32I find that under the provisions of the Regional Relocation Grants Act that apply in this instance, (1)the application, dated 17 January 2014, for a regional home buyers grant in respect of the purchase of Albion Park was received by the Chief Commissioner on 31 January 2014; (2)in consequence of the operation of s 15(2)(a1) of the Act the applicants did not "relocate from a metropolitan area" as required by s 15(1); (3)the purchase of Albion Park is not "an eligible home relocation" as described by s 8 of the Act; (4)the purchase of Albion Park is not "an eligible home relocation" for the purposes of s 5(b) of the Act. Costs 33Without the benefit of any submissions by the parties, in my view there should not be an order for costs in this matter and, as directed by s 60(1) of the Civil and Administrative Tribunal Act 2013 (NSW) "each party to [the] proceedings in the Tribunal is to pay the party's own costs". Order 34The decision under review is confirmed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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. Decision last updated: 16 September 2014