Dammo v Commissioner of State Revenue [2015] VCAT 907
This matter concerned the purchase of an established home in Gladstone Park by the applicant and the Commissioner’s decision to require repayment of the First Home Owner Grant ($7000), Bonus ($3000), the Boost ($7000) and the imposition of a $1000 penalty under s48(3) of the FHOG Act for his failure to comply with the residence requirement in s12. That is, that the applicant would occupy the property as his PPR for the required minimum period, within 12 months of completion of the eligible transaction.
The Tribunal was satisfied on the evidence that it was “more likely than not Mr Dammo intended this property to be an investment”. Six months and two days after the applicant had moved in, he moved out and tenants moved in under a residential tenancy agreement.
“I accept that he was mindful of and wanted to comply with the requirements of the First Home Owner Grant. But living in the property for the purpose of complying with the grant is not living in the property as one’s principal place of residence.”
“In cases such as this…the applicant has the onus of proof. He bears the responsibility to persuade the Tribunal that on the balance of probabilities he complied with the residence requirement. The evidence falls well short of doing so. I am satisfied on the weight of the evidence that this occupation did not have the necessary degree of permanence to meet the residence requirement.”
In terms of the penalty, which the Tribunal sustained for reasons of general deterrence, it commented that “it is also important in my view that Mr Dammo has not repaid the grant. He has had the benefit of $17,000 for nearly six years at a cost to the public”.