|Date of judgement||12 December 2019|
|Judge(s)||R L Hamilton SC, Senior Member|
|Court or Tribunal||NSW Civil and Administrative Tribunal|
First Home Owner Grant (New Homes) – substantially renovated home
The Vendors had originally purchased the Property in an un-renovated condition and renovated it themselves, then sold it to the Applicants.
The Applicants sought administrative review of the Chief Commissioner’s decision to refuse their application for a First Home Owners Grant (FHOG) in relation to their purchase of a property in Armidale NSW (“the Property”).
In their application for the FHOG, the Applicants asserted they were purchasing a “substantially renovated home”. The Chief Commissioner refused to pay the FHOG on the ground that the Applicants did not meet the eligibility criteria, ie the home was not a “new home” as defined in the First Home Owners Grant (New Home) Act 2000 because the renovations undertaken did not qualify as a substantial renovation.
The issue to be decided by the Tribunal was whether the Property purchased by the Applicants was a “substantially renovated home” making them eligible for the FHOG.
The relevant provision of the Act is section 4A which states:
(1) A new home is a home that has not been previously occupied or sold as a place of residence, and includes a substantially renovated home and a home built to replace demolished premises.
(2) A substantially renovated home is a home that:
(a) has been created through renovations in which all, or substantially all, of a building is removed or replaced (whether or not the renovations involve the removal or replacement of foundations, external walls, interior supporting walls, floors or staircases), and
(b) as renovated, has not been previously occupied or sold as a place of residence.
(3) A home is a home built to replace demolished premises if:
(a) the home has been built to replace demolished premises on the same land, and
(b) the home, as built to replace the demolished premises, has not been previously occupied or sold as a place of residence, and
(c) the owner of the home did not occupy the demolished premises as a place of residence before they were demolished.”
The Applicants submitted a letter from one of the vendors setting out the renovations to the Property which was included in the s. 58 documents. There were no supporting documents for building materials such as invoices.
The Applicants also submitted a collection of un-dated photographs of the interior and exterior of the Property before and after the renovations. It appears one of the vendors provided these photographs together with before and after floor plans. The Applicants did not call the vendor as a witness at the hearing.
The Applicants did not put into evidence any other supporting documents such as a Development Application, Certificate of Compliance, Occupation Certificate or Home Warranty Insurance Policy.
The Applicants contended that they purchased a “substantially renovated home” as supported by the photographs and the letter from one of the vendors. The Applicants’ submissions relied on the words in parentheses in section 4A:
The Applicants argued that these words qualify the requirement that all or substantially all of the building must be removed or replaced for the home to be regarded as substantially renovated.
The Applicants did not call witnesses for the hearing.
The Chief Commissioner submitted that the Applicants have failed to adequately establish the extent of the renovations.
The Chief Commissioner referred to the words in paragraph 4A(2)(a):
“a substantially renovated home is a home that has been created through renovations…”
The Chief Commissioner submitted that, by using the word “created”, the legislation is intended to limit eligibility for the FHOG Grant to “new homes” that are built from the ground up and to those which are basically equivalent, where all or substantially all of the building has been removed or replaced.
Senior Member Hamilton considered that the Applicants had not discharged the burden of proof and felt this was enough to dispose of the matter.
The Tribunal considered, in any case, that the removal and/or replacement of all or substantially all of the building is the primary test, and removing or replacing some dividing walls in the interior of the home, as well as some gyprock and fixtures and fittings, as may have occurred in this case, did not represent all or substantially all of the building.
The Tribunal decided that on the material before it the Property could not be regarded as a substantially renovated home within the meaning of section 4A(2)(a) of the Act.
(1) The Chief Commissioner’s decision is affirmed.