Le v Commissioner of State Revenue (Review and Regulation) [2024] VCAT 1032

Background

In 2014, the applicant purchased land in Truganina and entered a contract to construct a dwelling on the land.

An occupancy permit was issued for the property on 10 August 2016. The applicant applied for and was paid a First Home Owner Grant of $10,000 for the property in September 2016.

The applicant claimed to have resided there from August 2016 to March 2019 and that during this period, her sister stayed with her on occasions and paid board to her. The applicant lived with her parents both before and after the alleged period of occupation.

Issues

Whether:

• the applicant occupied the property as her principal place of residence (PPR) for a continuous period of at least 12 months commencing within the 12-month period immediately after the completion of the eligible transaction as required by s12 of the First Home Owner Grant and Home Buyers Schemes Act 2000
• the penalty of $1,000 should be remitted.

Decision

On 28 October 2024, the Tribunal confirmed the Commissioner’s decisions to reverse the grant and require the applicant to pay the penalty on the basis that:

• the applicant failed to discharge the onus of proof to show, on the balance of probabilities, she resided at the property as her PPR between the relevant period of 10 August 2016 and 10 August 2017. The totality of the evidence suggests it was the applicant’s sister (with her children) who was living at the property and it was most likely the applicant continued to reside with her parents
• the imposition of a penalty was appropriate and the quantum of $1,000, being 10% of the grant, was likely at the low end in the circumstances.