Zhou v Chief Commissioner of State Revenue [2024] NSWCATAD 93

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Zhou v Chief Commissioner of State Revenue [2024] NSWCATAD 93 Hearing dates: On the papers Date of orders: 09 April 2024 Decision date: 09 April 2024 Jurisdiction: Administrative and Equal Opportunity Division Before: S Higgins, Senior Member Decision: (1) A hearing of the applicant's extension of time application is dispensed with. (2) Time within which the applicant is to lodge her application for administrative review is extended to 29 November 2023. (3) On or before 17 April 2024, the applicant to provide the Tribunal and the respondent with an amended administrative review application (if any). (4) The substantive proceeding is listed for directions at 11.30 am on 23 April 2024. Catchwords: ADMINISTRATIVE REVIEW - application for an extension of time within which the applicant is to lodge her application for administrative review Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Duties Act 1997 (NSW) First Home Owner Grant and Shared Equity Act 2000 (NSW) (formerly named the First Home Owner Grant (New Homes) Act 2000 (NSW)) Taxation Administration Act 1996 (NSW) Cases Cited: Chief Commissioner of State Revenue v Ferrington (GD) [2004] NSWCATAD 41 Cornish Investments Pty Limited v Chief Commissioner of State Revenue (RD) [2013] NSWCATAP 25 Daoud v Chief Commissioner of State Revenue [2013] NSWCATAD 53 Deverich V Chief Commissioner of State Revenue [2010] NSWADT 268 D W Tolson Management Pty Ltd v Chief Commissioner of State Revenue [2016] NSWCATAD 113 Giammarco and Giammarco v Chief Commissioner of State Revenue [2019] NSWCATAD 77 Jackson v Land and Housing Corporation [2014] NSWCATAP 22 Khalil v Chief Commissioner of State Revenue [2011] NSWADT 276 Larkin v Chief Commissioner of State Revenue [2024] NSWCATAD 14 Pharmacare Laboratories Pty Ltd v Chief Commissioner of State Revenue [2009] NSWADT 128 Wang v Chief Commissioner of State Revenue [2021] NSWCATAD 45 Texts Cited: None Cited Category: Procedural rulings Parties: Ling Zhou (Applicant) Chief Commissioner of State Revenue (Respondent) Representation: Solicitors: Origo Law (Applicant) Crown Solicitor (Respondent) File Number(s): 2023/00432214 Publication restriction: None

reasons for decision 1. This decision concerns an application by the applicant, Ling Zhou, seeking an extension of time within which to lodge her application for administrative review of the 15 February 2021 Duties Notice of Assessment (Assessment) of the respondent, the Chief Commissioner of State Revenue. 2. The Assessment is a reassessment of the first home new home duty exemption or concession and relates to the duty payable by the applicant on her purchase, in 2015, of a new, to be built, residential property (Property), in NSW. The applicant's purchase had been made under the then First Home New Home scheme (FHNH scheme) which offered exemptions and concessions on transfer duty (stamp duty) for new homes that were also the first home of the purchaser: First Home Owner Grant (New Homes) Act 2000 (NSW) (FHOG Act) and Duties Act 1997 (NSW) (Duties Act) Part 8 Division 1, as they applied in 2015. 3. The purchase of the Property was completed in December 2017. In the latter half of 2020, the respondent decided to investigate whether the applicant had met the 'residence requirement' of the FHNH grant after the purchase of the Property had been completed: FHOG Act s 12 and Duties Act s 76. On the information obtained during the investigation, the respondent found that the applicant had failed to meet the 'residence requirement' and was therefore not eligible for the exemptions and concessions on the transfer duty that was payable. Based on this finding, the respondent issued to the applicant his 15 February 2021 Notice of Assessment. 4. The applicant lodged an objection to the Assessment on 16 April 2021: Taxation Administration Act 1996 (NSW) (TA Act s 86). 5. On 31 May 2022, the respondent issued his Objection Determination Notice. The Notice was emailed to the applicant's then legal representative, Direct Legal. In his Notice the respondent noted that he had disallowed the objection and brief reasons for the disallowance were also provided. At the end of the Notice, the respondent advised: If you are not satisfied with our decision, you may request the NSW Civil & Administrative Tribunal or the Supreme Court to review the decision within sixty (60) days of the date of this letter'. 6. The applicant's Administrative Review Form was lodged with the Tribunal on 29 November 2023, which was sixteen (16) months (487/8 days) outside the 60 days prescribed in s 99(1) of the TA Act. That section, however, also gives the Tribunal a discretion to 'allow a person to apply for a review after that 60-day period' and s 41(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) gives the Tribunal a wide discretion to extend time. 7. The applicant's application first came before the Tribunal at a directions hearing, on 25 January 2024. At the directions hearing I made orders for the filing and serving of evidence and submissions regarding the applicant's extension of time application. The applicant and the respondent were also directed to indicate in their submissions whether, in their opinion, the issues for determination in the applicant's extension of time application could be adequately determined in the absence of a hearing pursuant to ss 50(2) of the NCAT Act. 8. Both parties have indicated that the applicant's application for an extension of time is suitable to be determined on the papers. 9. Having considered the material that is before the Tribunal (see below), I am satisfied that the issues for determination in this application can be adequately determined in the absence of the applicant and the respondent by considering the material before the Tribunal, and I make an order accordingly. 10. For the reasons set out below I have decided to allow the applicant to apply to the Tribunal for a review of the Assessment after the prescribed 60-day period and on this basis, I make an order, under s 41(1) of the NCAT Act, that time within which the applicant is to lodge her administrative review applicant is extended to 29 November 2023.

Material before the Tribunal 1. Attached to the applicant's Administrative Review Form is: 1. a statutory declaration, dated 28 November 2023, of Chun Wei Wong; and 2. a statutory declaration, dated 31 October 2023, of the applicant. 1. On 5 February 2024, the applicant's solicitor in these proceedings, David Fan (Mr Fan), provided the Tribunal and the respondent with: 1. a further statutory declaration of the applicant dated 2 February 2024, 2. a statutory declaration of the applicant's daughter (Shu Wang) dated 3 February 2024; and 3. written submissions. 1. On 23 January 2024, the respondent provided to the Tribunal and the applicant a large paginated and numbered bundle of documents (361 pages) pursuant to s 58(1) of the Administrative Decisions Review Act 1997 (NSW) (ADR Act). The documents in that bundle are copies of every document or part of a document in the possession or control of the respondent that the respondent considers to be relevant to the determination of the applicant's substantive application, being a merit review of the respondent's Assessment. 2. On 16 February 2024, the respondent provided the Tribunal and the applicant with his written submissions. 3. On 1 March 2024, the applicant provided the Tribunal and the respondent with written submissions in reply.

Background 1. The background to this application, as contained in the s 58 documents, does not appear to be disputed. 2. The applicant has been a permanent resident of Australia since August 2012: see s 58 documents p 110. 3. On 22 January 2015, the applicant entered into a contract for the sale of the Property: see s 58 documents p 340. The contract was stamped as being 'Exempt'. 4. Settlement of the Property occurred on 15 December 2017: see s 58 documents p 6. Prior to the settlement of the Property, on 7 December 2017, the applicant departed from Australia and did not return until 18 January 2018: s 58 documents p 105. 5. On 15 February 2018, the applicant departed from Australia and travelled to China: see s 58 documents p 37. She returned to Australia on 19 March 2018. She was in Australia for 28 days and departed again on 16 March 2018. 6. The applicant returned to Australia 12 July 2018 and departed again, after 154 days (5 months plus a few days), on 13 December 2018. The applicant did not return to Australia until 9 February 2019. 7. On 12 December 2018, Sebastien Chun Wei Wong (Mr Sebastian Wong) solicitor of Conveyancing Bureau Pty Ltd lodged with the respondent, on behalf of the applicant, an application for a first home owner grant under the then FHOG(NH) Act: see s 58 documents pp 9-18. 8. On 17 December 2019, the respondent wrote to the applicant to advise that her application for a first home owner grant was not approved: see s 58 documents p 42. The letter was addressed to the applicant at her Property in NSW. In that letter the respondent said: Based on the information you provided, you are not eligible for the grant because you are not able to answer 'Yes' to the question: Will the applicant be occupying the home as their principal place of residence for a continuous period of at least six months commencing within 12 months completion of the eligible transaction? 1. The respondent also advised the applicant that if she disagreed with the decision to not approve her application for a first home owner grant, she had the right to lodge an objection. 2. On 14 February 2020, Mr Sebastien Wong sent an email to the respondent advising that the applicant sought to object to the abovementioned decision: see s 58 documents pp 48-49. In that email, Mr Sebastien Wong, explained that the applicant had returned to China because her mother was ill. He also noted: … our client has continuously occupying (sic) the property for a longest period of 5 months. Accordingly. Our client has instructed us to request for leniency and request for a reduced residency period. 1. As there had been no response to his email, on 5 June 2020, Mr Sebastien Wong, sent another email to the respondent in which he asked if a decision had been made in regard to the applicant's objection: see s 58 documents p 48. 2. On 11 August 2020, the respondent decided, pursuant to Part 9 of the TA Act, to investigate whether the applicant met the 'residence requirement' under the First Home Benefits Scheme: see s 58 documents p 51. Notice of that decision was emailed to an email address the applicant had provided when completing, as requested by the respondent during his investigation, the pro-forma 'Request for international movement records' form: see s 58 documents p 29. I understand that this email address is the email address of the applicant's husband. 3. On 2 October 2020, Mr Sebastien Wong sent an email to the respondent in response to the investigation: see s 58 documents pp 192-225. Attached to the email was a statutory declaration of the applicant dated 1 October 2020, the applicant's driving record, a copy of white goods purchased by the applicant for the Property and translated hospital and medical records of the applicant's mother. 4. The respondent's investigating officer completed her investigation on 12 February 2021: see s 58 documents p 259-286. The investigating officer found that the applicant's permanent place of residence was in China and recommended that the applicant's FHNH benefit be revoked as she had not met the residence requirement and that a 20% penalty be imposed: see s 58 documents p 263. 5. On 15 February 2021, the respondent sent an email to property@conveyancingbureau.com.au advising the applicant that the respondent was not satisfied that the 'residence requirement' of the applicant's first home owner grant should be exempted or shorten. On that basis, the respondent went on to say that he had decided to revoke the applicant's FHNH benefit with interest and penalty: see s 58 documents pp 287/288. Attached to the email was the 15 February 2021 Duties Notice of Assessment. 6. On 8 March 2021, the applicant sent an email (from her personal yahoo email address) to the respondent's investigating officer in which she explained that her English was 'not very well' and that she had authorised everything with her solicitor who she could not temporarily find. She explained that she lived in the Property and had never rented it out. She also provided an explanation for her absences: see s 58 documents p 295. 7. On 15 March 2021, the respondent's investigating officer emailed the applicant (with a copy to Conveyancing Bureau) of the material that had been sent on 15 February 2021 to her solicitor, Mr Sebastien Wong, concerning the finalisation of the respondent's investigation and the 15 February 2021 Assessment: see s 58 documents p 294. 8. As noted above, on 16 April 2021, Mr Sebastien Wong, on behalf of the applicant, lodged the applicant's objection to the respondent's Assessment: see s 58 documents p 298-301. That objection was sent under the cover of a letter from Conveyancing Bureau Pty Ltd. 9. On 16 July 2021, the respondent wrote to Mr Sebastien Wong seeking some further information from the applicant regarding her objection. A copy of that correspondence does not appear to be included in the s 58 document but is referred to in the correspondence at p 326. 10. Having received no response from Mr Sebastien Wong, the respondent sent a follow-up email on 7 October 2021: see s 58 documents p 326. That email was sent to Mr Sebastien Wong at property@directlegal.com.au. Mr Sebastien Wong replied to that email on 21 October 2021 to say that Conveyancing Bureau Pty Ltd was now known as Direct Legal. He said he had not received the 16 July 2021 email and went on to say that he would obtain the requested instructions from the applicant. Whether those instructions were obtained and forwarded to the respondent is unclear. 11. As noted above, on 31 May 2022, the respondent determined to disallow the applicant's objection: see s 58 documents p 331/2. Notice of that determination was emailed to Mr Sebastien Wong at the direct legal email address.

Relevant law 1. There is no dispute that the Assessment of the respondent that is the subject of the applicant's substantive application is an administratively reviewable decision by the Tribunal: TA Act s 96(1) and the ADR Act ss 7 and 9. 2. As noted above, s 99 of the TA Act makes provision for when an application for administrative review is to be made. That section relevantly provides as follows: 99 Time for making application for review (1) An application for review following a determination by the Chief Commissioner of an objection must be made not later than 60 days after the date of issue of the notice of the Chief Commissioner's determination of the objection. The court or tribunal to which the application is to be made may allow a person to apply for a review after that 60-day period.

NCAT Act 1. Section 41 of the NCAT Act provides: 41 Extensions of time (1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation. (2) Such an application may be made even though the relevant period of time has expired.

Applicable legal principles 1. The discretion to extend time under s 99(1) of the TA Act or s 41 of the NCAT Act is broad and unfettered. However, it is accepted that it must be exercised judicially and having regard to s 36 of the NCAT Act and the need to 'facilitate the just quick and cheap resolution of the real issues in the proceedings'. 2. In Daoud v Chief Commissioner of State Revenue [2013] NSWCATAD 53 (Daoud) at [15] and [16], the Tribunal noted the following regarding the exercise of the discretion in s 41 of the NCAT Act (citations omitted): 15 The grant of an extension of time is not automatic. The discretion to extend time is given for the sole purpose of enabling the Tribunal to do justice between the parties. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time. It is also necessary to consider the prospects of the Applicants succeeding in their application. In order to justify the Tribunal extending the time, there must be some material upon which the Tribunal can exercise its discretion: … 16 Time limits are set to promote the orderly and efficient conduct of proceedings in the Tribunal, to provide certainty for the parties to proceedings, and to achieve finality in litigation. For these reasons, time limits should generally be strictly enforced unless the interests of justice require that the extension be granted. 1. It is well established that the principles regarding the exercise of the discretion to extend time under s 41 of the NCAT Act include those set out by the Appeal Panel in Jackson v Land and Housing Corporation [2014] NSWCATAP 22 (Jackson) at [22]. These were summarised by the Tribunal in Doud, at [17], as follows (citations omitted): (1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the Applicant; (2) The discretion is to be exercised in the light of the fact that the Respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success; (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The Applicant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the Respondent (to the appeal); and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the Applicant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable. 1. The abovementioned principles, as I noted in Larkin v Chief Commissioner of State Revenue [2024] NSWCATAD 14 (Larkin), at [43] and [44] were affirmed by the Tribunal in Pharmacare Laboratories Pty Ltd v Chief Commissioner of State Revenue [2009] NSWADT 128 and Giammarco and Giammarco v Chief Commissioner of State Revenue [2019] NSWCATAD 77 (Giammarco). As noted by the respondent, they were also affirmed by the Tribunal in D W Tolson Management Pty Ltd v Chief Commissioner of State Revenue [2016] NSWCATAD 113 (D W Tolson).

Period of delay and reasons for delay

Period of delay 1. There is no dispute that the applicant's administrative review application was lodged sixteen (16) months (487/8 days) outside the 60 days prescribed in s 99(1) of the TA Act. 2. In my opinion, this is a very significant delay. 3. The applicant submitted that, when considering the length of the delay, the Tribunal should consider the 410 days it took the respondent to determine the applicant's objection. In my opinion, this is an irrelevant consideration. Especially as s 99(1) of the TA Act gives a taxpayer the right to seek external review of an Assessment of the respondent where the respondent fails to determine the objection to that Assessment within 90 days. Hence, in this case, the remedy to any delay by the respondent in determining the applicant's objection lay in the hands of the applicant, who appears to have decided to wait until a determination was made. Furthermore, that determination Notice was sent to the email address of service, as nominated by the applicant. If that address had changed, the onus was on the applicant, or her legal representative, to provide that changed email address to the respondent.

Reasons for delay 1. The applicant's case is that she was unaware of the respondent's 31 May 2022 Objection Determination Notice until 29 September 2023. In support of her case, the applicant relies on her statutory declarations dated 31 October 2023 and 2 February 2024 and the statutory declaration of Chun Wei Wong (Mr Wong) dated 28 November 2023. 2. In his statutory declaration Mr Wong (who I understand to have been previously known as Mr Sebastien Wong), said: 1. he was the principal solicitor of Origo Law, the solicitors for the applicant in these proceeding; 2. in 2018, while employed by Conveyancing Bureau, he was engaged by the applicant to act as her solicitor regarding her applications for stamp duty exemption and first home order grant. He recalled that the stamp duty exemption was initially approved, but the first homeowner grant was rejected by Revenue NSW. He said that the stamp duty exemption was later revoked as well; 3. in April 2021, Revenue NSW accepted 'my objection application and formally commenced its internal review process'; 4. in March 2022, he left Direct Legal (formerly known as Conveyancing Bureau) and founded Origo Law and the applicant remained a client of Direct Legal; 5. the applicant was not made aware of the existence of the 31 May 2022 objection determination until 27 September 2023. Nor had he been informed of the determination by Direct Legal or Revenue NSW; 6. In October 2023, after obtaining a copy of the objection determination the applicant retained Origo Law to act on her behalf and lodge this applicant for administrative review. 1. I accept Mr Wong's evidence to the extent that, to his knowledge, the applicant was unaware, until 27 September 2023, of the 31 May 2022 objection determination of the respondent. While his statutory declaration raises some issues of concern or lack of explanation, these are not matters of concern in this application. 2. In her statutory declaration of 31 October 2023, the applicant said that she had returned to China on 23 January 2023 as her mother was sick and her mother's carer was not available due to personal reasons. She went on to say that she did not return to Australia until 26 October 2022 as China and Australia had closed their respective borders in 2020 due to the COVID-19 situation. Her mother also passed away in July 2021 and she could not return thereafter because of her own declining health. 3. In her statutory declaration of 2 February 2024, the applicant acknowledged that, in 2018, she had engaged Chun Wei Wong (Mr Wong) to assist her in applying for stamp duty exemption and first homeowner grant for the property she had purchased. She said that, in 2020, Mr Wong had informed her about the 11 August 2021 investigation being conducted by Revenue NSW and that she had instructed Mr Wong to provide further information to Revenue NSW. She said Mr Wong had informed her of the 15 February 2021 decision of the respondent to revoke the benefit she had received and that he had lodged an objection, on her behalf, on 16 April 2021. 4. The applicant re-iterated her reasons for not being able to return to Australia until 31 October 2022. 5. The applicant said that, in early 2023, she was trying to get in touch with Mr Wong to find out if a determination had been made. She said 'I was told by Conveyancing Bureau that he was no longer employed' by that firm and that she needed to contact him to find out the outcome of her objection application. 6. The applicant said that she finally got in touch with Mr Wong in September 2023 and that: … [on or around] 29 September 2023, Mr Wong provided me with a copy of the determination and informed me that Revenue NSW had made a determination on 31 May 2022 to reject my objection. That was the first time I became aware of the determination, the subject of these proceedings. 1. As noted above, the evidence is that the respondent's 31 May 2022 Objection Determination Notice was sent by email to property@directlegal, the applicant's nominated legal representative. 2. I accept the evidence of the applicant that, it was not until around 29 September 2023, when Mr Wong gave her a copy of the respondent's 31 May 2022 determination, that she became aware that her objection to the Assessment was disallowed. 3. However, this alone does not provide a satisfactory explanation for the delay in lodging her application for administrative review, because, in my opinion, the applicant has failed to explain why, after she returned to Australia in October 2022: 1. it took her eleven (11) months to locate Mr Wong – in this regard I note that the offices of Direct Legal and Origo Lawyers are both located in the CBD of Sydney and are close to each other. They also appear to have been easily accessible through a telephone call; 2. she did not send a follow-up email to the respondent, as she had done on 8 March 2021, after receiving notification of the outcome of the respondent's investigation as to whether she had met the 'residence requirement' of the FHNH scheme. 1. In the written submissions of the applicant, it is contended that part of the delay was due to the applicant being under the impression that her objection was still being processed. In my opinion, the evidence of Mr Wong, or the applicant provides no support for this contention. 2. Accordingly, in my opinion, the applicant has not provided a satisfactory reason for the delay since returning to Australia in October 2022.

Prejudice 1. The respondent does not assert that he suffers any prejudice as a result of the applicant's delay in lodging her application for administrative review.

Does the applicant have a fairly arguable case? 1. There does not appear to be any issue that the Property purchased by the applicant was a new home and the applicant's first home. The only matter in issue appears to be whether she satisfied the 'residence requirement' in order to qualify for the duties exemption. 2. It is unclear whether the applicant also seeks review of the respondent's decision to not approve her application for a first home owner grant. That decision was made on 17 December 2019 based on the applicant having failed to meet the 'residence requirement' for such a grant. At the same time, I note that the initial objection lodged, on 14 February 2020, on behalf of the applicant related to the 17 December 2019 decision to not grant the applicant a first home owner grant under the FHOG Act). It was this objection which appears to have given rise to the August 2020 investigation by the respondent. Yet no determination appears to have ben made by the respondent concerning this objection which involves the same 'residence requirement' issue: see FHOG Act s 12 (1). 3. In the event, the applicant does seek a review of the decision of the respondent not to grant her a first home owner grant, that application has also been lodged out of time. An extension of time to seek review of that decision appears to involve the same issues that arise in this application. 4. As noted by the applicant in her written submissions in reply, the test on an extension of time application is whether the applicant has a 'fairly arguable case on the merits': Jackson at [22(3)(c)]. 5. There is no dispute that the applicant bears the onus of proof (TA Act s 100(3) and FHOG s 28(3), to prove that she satisfies the 'residence requirement' in s 76(1) of the Duties Act and s 12 (1) of the FHOG Act. 6. It is convenient to briefly deal with the relevant provisions of the Duties Act and the FHOG Act and the legal principles that apply to the application of these provisions.

Relevant law

Duties Act as it applied at the relevant time 1. Section 76(1) in Division 1 of Part 8 of the Duties Act prescribes a 'residence requirement' in order to qualify for the FHNH scheme duty exemption. That section provides as follows: 76 Residence requirement (1) The home must be occupied by the first home owner or one of the first home owners who is acquiring it as a principal place of residence for a continuous period of at least 6 months, with that occupation starting within 12 months (or such longer period as the Chief Commissioner may approve) after completion of the agreement or transfer. This requirement is referred to as the residence requirement. 1. A completion of the transfer is when the purchaser or transferee becomes entitled to possession of the home (Duties Act s 76(5)). 2. Section 76(2) in Division 1 of Part 8 of the Duties Act, provides that the respondent may, if satisfied there are good reasons to do so in a particular case: (a) modify the residence requirement by approving a shorter period of occupation by a first home owner, or (b) exempt a first home owner from the requirement to comply with the residence requirement. 1. Section 76A(1) of Division 1 of Part 8 the Duties Act provides that respondent may approve an application made under that Division in anticipation of compliance with the residence requirements in s 76 where the Commissioner is satisfied that the applicant intends to occupy the home as his or her principal place of residence for a continuous period of at least 6 months, with that occupation starting within the 12 months after completion of the agreement or transfer. 2. Section 79 of Division 1 of Part 8 of the Duties Act gives the Commissioner the power to reassess the duty payable where a duty concession was wrongly applied.

First Home Owner Grant (New Homes) Act 2000 1. Division 2 of Part 2 of The First Home Owner Grant (New Homes) Act 2000 (NSW) (FHOG) (as it was titled during the relevant time) made provision for grants to be made to persons who purchased a new home that was also their first home. Division 2 of Part 2 of that Act sets out the eligibility criteria for such a grant, which includes a residence requirement: FHOG s12 which relevantly provides: 12 Criterion 5—Residence requirement (1) An applicant for a first home owner grant must— (a) commence occupation of the home to which the application relates as the applicant's principal place of residence within 12 months after completion of the eligible transaction or the period approved by the Chief Commissioner under this section, and (b) occupy the home as a principal place of residence for a continuous period of at least 6 months or the period approved by the Chief Commissioner under this section. (2) This requirement is referred to in this Act as the residence requirement. (3) The Chief Commissioner may, if satisfied there are good reasons to do so, do either or both of the following— (a) …, (b) approve the occupation of the home as a principal place of residence for a period of less than 6 months. (4) The Chief Commissioner may, if satisfied there are good reasons to do so, exempt an applicant from the residence requirement. (5) An approval or exemption under this section may be given by the Chief Commissioner at any time, even if the period of 12 months after completion of the eligible transaction has already expired or the applicant's occupation of the home as a principal place of residence has already ceased. 1. An applicant who is dissatisfied with a decision of the respondent not to approve the person's application for a first home owner grant is entitled to make objection to the respondent: FHOG s 25. 2. An objector, who is dissatisfied with the respondent's determination of the objection, or 90 days have passed since the objection was lodged with the respondent and the respondent has not determined the objection, is also given a right to seek review by the Tribunal: FHOG s 28(1). On review by the Tribunal is the decision of the respondent that was the subject of the objection. 3. Section 28(4) and (5) of the FHOG Act are in similar terms to s 99(1) of the TA Act. 4. Section 28(3) of the FHOG Act also provides that it is the applicant seeking administrative review who bears the onus to prove his/her case.

Applicable legal principles 1. As noted by the Tribunal in Deverich V Chief Commissioner of State Revenue [2010] NSWADT 268 (Deverich) at [42], the Duties Act and the FHOG Act requires more than just acquisition of property and using the property as a place to sleep on a few occasions during the period of six months. Instead, what must be demonstrated is that the 'grant property is acquired and occupied as the applicant's principal place of residence' for a continuous period of at least 6 months that commences within the 12 months immediately after the property was acquired and possession granted to the applicant: see also Chief Commissioner of State Revenue v Ferrington (GD) [2004] NSWCATAD 41 and Wang v Chief Commissioner of State Revenue [2021] NSWCATAD 45. 2. In Khalil v Chief Commissioner of State Revenue [2011] NSWADT 276 at [30] the Tribunal noted the following as to the essential issue in determining the 'residence requirement' in s 76 of the Duties Act and s 12 of the FHOG Act: 30 The essential issue for determination is whether the applicant complied with the 'residence requirement' for purposes of both FHOG Act and the Duties Act. The 'residence requirement' required the applicant to occupy the home as a principal place of residence for a continuous period of at least 6 months. There are strictly two tests to be satisfied. Firstly, the applicant has to demonstrate that he or she occupied the property for a period of at least six months. Secondly, and more importantly the property must be occupied during the relevant period as the principal place of residence of the applicant.

The applicant's case 1. It is the applicant's contention that, based on her evidence in her statutory declarations of 31 October 2023 and 2 February 2024, together with the evidence of her daughter in her statutory declaration dated 3 February 2024 she has an arguable case. 2. In her evidence the applicant, as I have already noted, states that the Property has been her principal place of residence since it was completed in December 2017 and has never been rented out. The applicant goes on to reiterate the reasons for her absences in 2018. 3. In her evidence, the applicant's daughter states that the Property was and still is her mother's principal place of residence. She states that at the time her mother settled on the Property in December 2017, her mother offered to help her to look after her two children as she was in Australia alone. Her husband was overseas. Her mother also asked her to move in with her at the Property. She states that she helped her mother purchase white goods for the Property while she was overseas. However, her mother paid for these with her credit card. In January 2018, she changed her husband's registered address to the address of the Property. Her husband did not return to Australia until April 2018. They remained in the Property temporarily with her mother as her foot had been injured and she need an operation. They moved out of the Property in 2019.

The respondent's case 1. The respondent did not concede that the applicant had a fairly arguable case on the merits. Why he did not concede this to be case was not explained. 2. However, the respondent did re-iterate that the applicant bore the onus to prove, on the balance of probabilities her case. That is she must prove all the matters necessary for the Tribunal to answer the statutory questions in her favour, and in the absence of that evidence the respondent's decision will prevail as correct: Cornish Investments Pty Limited v Chief Commissioner of State Revenue (RD) [2013] NSWCATAP 25.

Consideration 1. In my view, given the evidence in the statutory declarations of the applicant and the applicant's daughter, together with the material contained in the respondent's s 58 documents it cannot be said that the applicant's application is frivolous and must fail. 2. The matters in issue are limited and, in my opinion, the applicant may have an arguable case, even in a limited regard involving a question of discretion vested in the respondent to approve a period of less than 6 months under s 76(2) of the Duties Act and s 12(3) of the FHOG Act. 3. While it is for the applicant to determine the scope of her application, what does not appear to be contested is that the applicant did in fact occupy the Property for a continuous period of a little more than five (5) months in 2018 and that this occupation occurred, before the expiry of the statutory 12 month period from the date of settlement of the Property. It is of course incumbent on the applicant to also prove that during this period of occupation of the Property it was as her principal place of residence. Mere assertion that this was the case is not proof of that fact. However, the applicant may be able to argue that she has provided sufficient evidence to prove that fact. Alternatively, she may be able to provide some further evidence to prove that fact. 4. As noted above, the applicant had requested that the respondent exercise his discretion, under s 76(2)(a) of the Duties Act and modify the 'residence requirement' for this shorter time. The respondent was not satisfied, on the material before him that the requested modification should be made.

Conclusions 1. For the reasons set out above, I have found that there has been a substantial delay in the applicant lodging her application for administrative review and that she has not provided an altogether satisfactory reason for that delay. However, I am satisfied that the applicant may have an arguable case, which involves an issue of discretion. 2. In my view, as there is no prejudice to the respondent if time is extended within which the applicant lodges her administrative review application and balancing this against the other findings I have made, justice requires that the applicant be given an opportunity present her case. In doing so she must of course be satisfied that her evidence will prove her case. 3. On the basis of my finding as to where the balance lies, I have decided to allow her to apply for a review after the prescribed 60 day period and make an order, under s 41 of the NCAT Act accordingly. 4. I will leave it to the applicant to determine whether her application needs to be amended to include a review of the decision of the respondent to not grant her application for a first home owner, or whether that decision automatically forms part of the current application. In the event the applicant does intend to amend her administrative review application to include that decision, I have made an order that any amended application is to be provided to the Tribunal and the respondent by 17 April 2024.

Orders 1. For the reasons set out above I make the following orders: 1. A hearing of the applicant's extension of time application is dispensed with. 2. Time within which the applicant is to lodge her application for administrative review is extended to 29 November 2023. 3. On or before 17 April 2024, the applicant to provide the Tribunal and the respondent with an amended administrative review application (if any). 4. The substantive proceeding is listed for directions at 11.30 am on 23 April 2024.

********** 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: 09 April 2024