Wang v Chief Commissioner of State Revenue [2016] NSWCATAD 61

Date of judgement 7 April 2016 Proceeding No. 1510643
Judge(s) Senior Member Isenberg
Court or Tribunal New South Wales Civil and Administrative Tribunal
Legislation cited Administrative Decisions Review Act 1997

First Home Owner Grant (New Homes) Act 2000 (formerly known as First Home Owner Grant Act 2000)
Catchwords ADMINISTRATIVE LAW – first home owners grant – new home – entitlement to grant - misleading action by OSR – estoppel
Cases cited B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187, (2008) 74 NSWLR 481

Cornish Investments Pty Limited v Chief Commissioner of State Revenue (RD) [2013] NSWADTAP 25

McTackett v Chief Commissioner of State Revenue [2003] NSWADT 154

Nairn v Chief Commissioner of State Revenue [2011] NSWADT 41

Stature Pty Ltd v Chief Commissioner of State Revenue [2002] NSWADT 271

Background

The case concerned an application for review of the Chief Commissioner of State Revenue’s (‘the Commissioner’) decision not to grant the Applicant’s first home owners grant application, in relation to the property purchased by the Applicant in Macquarie Park NSW (‘the property’) in December 2014.

Together with a co-purchaser, the Applicant purchased the property in December 2014, and commenced occupation as its first occupiers. The Applicant and the co-purchaser applied for a First Home Owners Grant (‘the Grant’) in July 2015. The Commissioner rejected the application on the basis that the property was not a ‘new home’ within the meaning of the First Home Owner Grant (New Homes) Act 2000 (‘the Act’), since the property had previously been sold by the developer to another purchaser who had on-sold the property to the Applicant and co-purchaser.

The Applicant objected to the Commissioner’s decision on the basis that he was misled by the Commissioner because he relied to his detriment on information contained in the Office of State Revenue (‘OSR’) website, as well as written advice provided by an officer of the OSR. The Applicant submitted that the OSR website defines a new home as ‘a home that has not been previously occupied, including occupation by the builder, a tenant or other occupant’. The Applicant further submitted that an officer of the OSR provided email advice to the Applicant to the effect that he would be entitled to the Grant subject to the date on which he purchased the property.

The Statutory Framework

The legislative scheme governing the Grant requires purchasers of a new home to satisfy certain eligibility criteria in order to qualify for a grant of money from the NSW government.

One of the primary requirements for entitlement to the Grant is that the property purchased must be a new home as defined in section 4A(1) of the Act.

Section 4A(1) of the Act provides: “A new home is a home that has not been previously occupied or sold as a place of residence”. 

With respect to the Applicant’s submissions regarding being misled by the Commissioner, Senior Member Isenberg referred to section 7 of the Act, which provides that entitlement to a Grant is contingent upon the applicant complying with the eligibility criteria. Senior Member Isenberg also referred to section 13(1)(a) of the Act, which stipulates that to qualify as an eligible transaction, the purchase must relate to a new home.

Submissions

The Applicant submitted that the use of the word “or” in the definition means that a new home need only meet one of the two options expressed in the definition. The Applicant submitted that the fact that the property had not been previously occupied satisfied the first limb of the definition, and as a result, the property should qualify for the Grant. 

The Commissioner submitted that emphasis must be placed on the phrase “has not been previously”, therefore either prior occupation or prior sale of the property as a place of residence will disqualify a home from being a new home for the purposes of the Act. Given that the Applicant’s property had been sold as a place of residence prior to the Applicant’s purchase of the property, the Commissioner submitted that the Applicant’s home could not qualify as a new home for the purposes of the legislative scheme.

The Applicant did not make any submissions to the effect that he should be exempted by the Act from compliance with the eligibility criteria contained within sections 7 and 13 of the Act.

Decision

Senior Member Isenberg preferred the Commissioner’s interpretation, and held that the words “has not been previously” serve to qualify the words “occupied” and “sold”, such that if the home has been previously occupied or previously sold as a place of residence, the home no longer fits within the definition of a new home contained within section 4A(1) of the Act. Senior Member Isenberg affirmed the decision of the Commissioner, and concluded that because the property had been previously sold as a place of residence, it could not meet the definition of a new home for the purposes of the Act.

Further, Senior Member Isenberg concluded that there was no authority to entitle the Applicant to a grant to which he was not otherwise entitled pursuant to the Act, irrespective of whether he had been relevantly misled by the Commissioner. Therefore, Senior Member Isenberg held that it was not necessary to make a finding in relation to whether or not the Applicant had been misled, since the Applicant would nevertheless be ineligible for the Grant.

Link to decision

Wang v Chief Commissioner of State Revenue [2016] NSWCATAD 61

Last updated: 17 May 2016