Byrne v Chief Commissioner of State Revenue [2023] NSWCATAD 234

Background

The Applicant completed the purchase of a residential property at Hamilton on 8 May 2018, moved into the property on 10 May 2018, and claimed to have remained in occupation for 6 months as required to qualify for the First Home Benefits assistance under Part 8, Division 1 of the Duties Act 1997 (NSW).

Prior to the completion of the purchase of the Hamilton Property, the Applicant lived with her parents at her parents’ home.   During the 6-month period commencing on 10 May 2018, the Applicant’s partner lived in the Eastern Suburbs of Sydney, and worked from offices in Barangaroo in the City of Sydney.

The Applicant claimed that during the relevant 6 month period she would spend approximately 4 nights per week at the Hamilton property.

Issues

The issue to be determined was whether Ms Byrne occupied the Hamilton Property as her principal place of residence for a continuous period of 6 months, commencing on 10 May 2019. The Senior Member’s determination turned on (1) evidence tendered by the Chief Commissioner and (2) the meaning of “principal place of residence”.

Evidence of occupation of the Hamilton property

The Applicant’s evidence of occupancy of the Hamilton property included extracts from the Electoral Roll, Australian Tax Office records, bank records, records of utilities (electricity and water) usage and insurance cover, and credit card and opal card activity.

The Chief Commissioner’s evidence included the Applicant’s credit card activity in Sydney and the Hamilton-Newcastle area and her travel both in Sydney and between Sydney and Hamilton, the latter having been evidenced by her Opal card records.  The Chief Commissioner collated that evidence in the form of a day-by-day and location analysis of Ms Byrne’s expenditure and movements, cross-referenced to documents in the s 58 bundle and the Chief Commissioner’s Tender Bundle.

The Senior Member found the evidence tendered by the Chief Commissioner to be persuasive of the fact that Ms Byrne did not occupy the Hamilton Property to the extent that she had claimed. The Senior Member concluded that even on a generous interpretation, the Applicant had made use of the property for 55 evenings out of the asserted 267-day period.

Meaning of 'principal place of residence'

The Senior Member concluded that the Applicant’s account of the duration and degree of her use and occupation of the Hamilton property was unpersuasive in light of the objective third-party evidence adduced by the Chief Commissioner.

The Senior Member determined that when a person’s occupation of a property is found to be of a “transient, temporary, contingent or passing nature”, that will be a strong indication that the property is not the principal place of residence of that person, because their occupation and use of it lacks the degree of permanence necessary for the property to be so regarded.

Accordingly, the Senior Member concluded that the Applicant’s use and occupation of the Hamilton property in  the relevant 6 months’ period was of such a transient, temporary, contingent or passing nature that it defeated her assertion that she occupied the property as her principal place of residence.

Orders

The decision of the Chief Commissioner to reverse the Applicant’s exemption from duty under the First Home Buyer’s Assistance Scheme is affirmed.

Read the full decision