Housing Grants Appeals

Below is a listing of appeals heard by the South Australian Civil & Administration Tribunal (SACAT) in relation to housing grant matters since August 2017.

Wells v Treasurer for the State of South Australia, Commissioner of State Taxation (2018/SA002592)

Date of Decision: 21 March 2019

Orders: The decisions subject to review are set aside and the applicants’ application for a Seniors Housing Grant is allowed.

Decision:

The Tribunal set aside the decisions of the Treasurer and the Commissioner of State Taxation and allowed the Seniors Housing Grant for the following reasons:

Right of occupation is not defined under the First Home and Housing Construction Grants Regulations 2015 (the “Regulations”).  The First Home and Housing Construction Grants Act 2000 contemplates that a right under the Regulations can fall short of what would be a legal interest.  Whilst the creation of a legal interest in land usually requires writing, a right of occupation must be a right which allows the Commissioner of State Taxation to form the view that there is a “reasonable security of tenure” but need not necessarily be in writing.

The applicants had an informal right of occupation over the relevant land given to them by a relative (i.e. Dr Wells to Mrs Wells and vice-versa) at the relevant time (i.e. on completion of the contract in March 2017).  That the applicants are also trustees of a trust does not mean that they are not relatives for the purposes of the Regulations.

On the basis of the applicants’ affidavit of 8 February 2019, the applicants gave themselves an informal right of occupation that existed at the relevant time (i.e. on completion of the contract in March 2017) and that gave them reasonable security of tenure, as the land was acquired, and the building contract entered into, for the mutual purpose of the house being constructed as their place of residence for their retirement on completion of the building works.

The following factors were relevant to establishing the applicants’ informal right of occupation and reasonable security of tenure over the relevant land at the relevant time (i.e. on completion of the contract in March 2017):

  • From 2005, the relevant land has been used under the same terms and conditions as the Licence Agreements of 4 May 2017.
  • The purpose of buying the relevant land was to construct a home for the applicants to retire on.
  • The applicants personally borrowed to contribute to the purchase of the relevant land, and have been solely responsible for repayment of the loan.
  • The applicants have used the relevant land as if it were their own “in all but name and have occupied and used it over the years to the fullest extent possible as if it were our own, and with full leave and licence of the Trustees (ourselves) and of all living adult beneficiaries (our children).”
  • The applicants personally paid all rates, taxes and outgoings for the relevant land.
  • The applicants moved into the house that was built on the relevant land from March 2017, although there were still some building works going on around them.
  • The terms of the personal use and occupation of the [relevant land] since 2005 and the purpose of that use and occupation (to prepare for the building of our retirement house there), were reduced to writing and recorded in the licence agreements of 4 May 2017 to mark the imminent conclusion of the house project.”

Catchwords: SENIORS HOUSING GRANT – Non-conforming interest – A licence or right of occupancy over land given to a person by a relative – Reasonable security of tenure

Case Summary: Decision not published in this case.

Marinis v Treasurer for the State of South Australia, Commissioner of State Taxation (2017/SA002340)

Date of Decision: 7 March 2019

Orders: The Tribunal affirmed the decisions under review.

Decision:

The Tribunal affirmed the decisions of the Treasurer and the Commissioner of State Taxation to require repayment of the First Home Owner Grant (FHOG) on the basis that the applicant did not occupy the relevant property (the “Property”) as her principal place of residence for a continuous period of at least six months (the “Residence Requirement”).

The decision to require the applicant to repay the FHOG had been made primarily on the basis of the applicant’s low utility usage, admissions regarding her typical usage of the Property, failure to update various address records, and inadequate reasons for moving out of the Property.

The Tribunal concluded that the Property did not genuinely represent the applicant’s principal place of residence and that the Residence Requirement had not been satisfied. In the Tribunal’s view, the applicant’s occupation of the Property was always in the nature of a short-term “adventure”, during which it was perceived that the Residence Requirement would be met. Objectively, it was always within the contemplation of the applicant that the Property would be rented out at the end of the requisite six-month period.

The Tribunal confirmed the application of the six principles originally set down in Chief Commissioner of State Revenue v Ferrington [2004] NSWADTAP 41 in relation to the concept of ‘principal place of residence’, these being:

(1) The words “principal place of residence” should be given their ordinary meaning in the context in which they appear.
(2) Whether a person has been occupying premises as their principal place of residence is to be assessed objectively, in the light of the circumstances relating to the actual occupation of the dwelling.
(3) The intention of the person concerned, gauged objectively, is relevant but not determinative of the issue.
(4) To occupy a home as his or her principal place of residence a person’s occupation must have a degree of permanence to it: a connection to a place of residence of a transient, temporary, contingent or passing nature is not sufficient, nor is occupation for some other purpose.
(5) The short length of a person’s residence, while relevant, is not determinative of the issue.
(6) The reasons for a person’s departure from the home must be both reasonable and adequately explained when considered objectively in the light of their personal circumstances.

In addition, the Tribunal ruled that a person will not necessarily have a principal place of residence in the sense envisaged by the First Home and Housing Construction Grants Act 2000, and that it is not necessary to identify an alternative property as the person’s principal place of residence in order to demonstrate a failure to satisfy the Residence Requirement.

Catchwords: FIRST HOME OWNER GRANT – residence requirement – principal place of residence

Case Summary: Decision not published in this case.

Shipley v Treasurer for the State of South Australia, Commissioner for State Taxation (2018/SA002875)

Date of Decision: 3 December 2018

Orders: The Tribunal affirmed the decisions under review.

Decision:

The Tribunal affirmed the decisions of the Treasurer and the Commissioner of State Taxation to deny an application for the Seniors Housing Grant (SHG) on the basis that the applicant did not commence an eligible transaction during the eligibility period.

The applicant signed a comprehensive home building contract prior to the abolition of the SHG, however a representative of the builder did not countersign the contract until after abolition. Unless the parties held a different intention, a contract was not “made” for the purposes of the SHG until the final signature was applied.

The Tribunal concluded that the signing of the contract by the applicant did not create a contract, but instead constituted an offer to the builder which required acceptance. In the Tribunal’s view, the builder did not consider itself legally bound by the contract until it had been signed on its behalf. It was clear that the builder maintained the right to decline to sign the contract and to then produce a substantially different contract to the applicant. Furthermore, it was apparent that the contract was drafted with the provisions of the Building Work Contractors Act 1995 in mind (Section 28 of that Act requires that such a contract be in writing and signed by both parties).

Catchwords: HOUSING CONSTRUCTION GRANT – comprehensive home building contract – eligible transaction – owner builder – transaction commencement date

Case Summary: Decision not published in this case.

Williams v Treasurer for the State of South Australia, Commissioner for State Taxation (2017/SA001110)

Date of Decision: 8 August 2017

Orders: 1. The Tribunal affirmed the decisions under review.

Decision:

The Tribunal affirmed the decisions of the Treasurer and Commissioner of State Taxation to deny an application for the Housing Construction Grant (HCG) on the basis that the applicant did not commence an eligible transaction during the eligibility period.

The ‘Supervision Only (Project Management) Housing Work Contract’ executed by the applicant was not a ‘comprehensive home building contract’ for the purposes of the HCG. As such, the applicant was classified as an owner builder whose eligible transaction did not commence until foundations were laid.

The Tribunal also concluded that there was no sufficient reason to exercise the statutory discretion to vary the applicant’s transaction commencement date (to make it the date of the contract). Executive Member Stevens stated that the date of the applicant’s contract bore no relation to the date when foundations were laid and that such an exercise of the discretion would potentially circumvent the legislative distinction between applicants who enter into comprehensive home building contracts and those who are owner builders.

Catchwords: HOUSING CONSTRUCTION GRANT – comprehensive home building contract – supervision only contract – eligible transaction – owner builder – transaction commencement date

Case Summary: Decision not published in this case.