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Re Roger John Townsend and Wendy Townsend and Director-General of Housing and Construction [1984] AATA 117 (13 April 1984)

COURT

CATCHWORDS

Home Savings Grant Act 1964 - s.19

Home Savings Grant Act 1976 - s.11

First Home Buyers Act 1983 - s.9

HEARING

ORDER

DECISION

On 26th July 1982, the present applicants, Roger and Wendy Townsend made application for a grant declaring that they had settled the purchase of a contract dated 18th May 1982 and that they occupied the dwelling at Cradoc so purchased as their principal place of residence. Transfer of title to them was registered on 22nd June 1982.

Acting on information which the application form did not require to be supplied, the delegate of the Director-General rejected the application. He based that decision on the fact that prior to purchase Mr. Townsend had held a quarter share in the dwelling by reason of an inheritance from his late father. He had formerly held that share as a tenant in common with his two brothers and a sister.

Each of the applicants for assistance claimed that he or she was a prescribed person in relation to the dwelling at Cradoc for the purposes of Sections 15 and 16 of the 1982 Act.

The relevant provisions of those sections for present purposes are as follows:-

"15.(1) Where, on or after 18 March 1982, a person (in

this section referred to as the "home acquirer") has,
or 2 or more persons (in this section referred to as
the "home acquirers") together have -

(a) entered into a contract for the purchase of a
dwelling situated in Australia; . . . then, . . .
each of the home acquirers . . . is, for the purposes
of this Act, a prescribed person in relation
to the dwelling.

(3) Where -

(a) a person is a prescribed person in relation to
a dwelling; and

(b) . . . a grant under a prescribed Act or under this
Act has not been made to the prescribed person,
either alone or jointly with another person,

16.(1) Where . . . each person who is a prescribed person in relation to a dwelling is a person to whom sub-section 15(3) applies in relation to the dwelling, an application for a grant in respect of the dwelling may be made in accordance with this section.

For the purpose of interpreting the phrase "the purchase of a dwelling", it is necessary to turn to section 11(2)(a) of the Act, which so far as relevant for present purposes, is as follows:-

A reference in this Act to purchase . . .
in relation to a dwelling, shall be read
as a reference to purchase . . . of

(a) . . . the land on which the dwelling is . . . erected.

Thus the home acquirers entered into a contract for the purchase of land on

"A reference in this Act to purchase . . .
in relation to land . . . shall be read
as a reference to purchase . . . of an approved
interest in the land . . .".

The definition of "approved interest" in s.4(1) of the Act begins:-

"Approved interest means -

(a) an estate in fee simple".

The applicants argued that they purchased a fee simple. They are now the

For the respondent it was contended that the phrase "approved interest in the land" means all interests which make up the fee simple and that the male applicant did not purchase a fee simple but only three quarters thereof.

But for an argument based on the provisions of other statutes, I would find no difficulty in accepting the applicant's contention. The 1982 Act is concerned with that which has been purchased, not that which was sold. The result of the contract of purchase was to make the applicants owners of a freehold in fee simple. Accordingly it would seem that they are eligible to apply for a grant.

The circumstances which would preclude an applicant from securing a grant are to be found in ss. 18 and 19 and, prior to its repeal by Act No. 47 of 1983, in Division 2 of Part III.

S.18 deals with prior ownership of another dwelling. S.19 deals with the adequacy of the applicants' financial resources, the amount of their earnings, and the need for Australian citizenship or residence. If it was intended to add another disqualification, namely, prior ownership of less than the fee simple in the dwelling purchased, it would have been useful to find it in either of these sections as an express prohibition to the making of a grant.

But the respondent contended that an intention to deny an applicant who purchases less than a whole fee simple can be derived from an examination of the history of earlier legislation.

The Home Savings Grant Act 1964 authorised grants to certain persons if they entered into a contract for the purchase of a dwelling house. S.19(1) and (2) contain provisions which were clearly intended to have the same effect as s.11(1) and (2) of the 1982 Act. The differences in wording do not give them any substantively different meaning.

But s.19(3)(a) is a provision which was not reproduced in 1982. It is as follows:-

"For the purposes of this section -
the purchase of an interest in land . . .
being an interest that, together with an
interest already owned by the purchaser . . .
constitutes an approved interest in the
. . . shall be deemed to be the purchase of
such an approved interest. . . ".

When the Home Savings Grant Act 1976 was enacted, s.11 reproduced in almost

When rejecting the Townsend application, the respondent relied on the omission of s.19(3) from the 1982 Act for the purpose of inferring that Parliament intended "that the purchase of a remaining part interest could no longer be a home acquisition of a type which would attract a grant". The same argument was advanced at the hearing before the Tribunal.

One clear purpose of s.11 of the 1982 Act (and for that matter of its 1964 and 1976 counterparts) was to ensure that otherwise eligible applicants were not precluded from securing grants by reason of the fact that title to the dwellings which they intended to occupy was not of the simple kind held by an owner who has a house on a block of land.

A fee simple owner enjoys exclusive proprietary rights. A lessee or life tenant generally has the same by virtue of a covenant of quiet enjoyment. But the Acts of 1964, 1976 and 1982 all recognise a variety of relatively modern methods of enjoying property such as a stratum title, the holding of shares in a home unit company or an undivided share conferring rights of occupancy. The existence of different methods of holding title to such land and dwellings in different Australian States is also recognised in each Act.

The respondent says that there was another purpose, namely to clarify the type of interest in land which would make the purchaser or owner thereof eligible to seek a grant. If that was so, I do not consider that the words used have achieved that purpose in the 1982 Act. The argument would have some force if the words of s.11 were ambiguous but in my opinion they are not.

In any event the applicant argued that the subsections omitted were otiose and added nothing to the sections in which they previously appeared. Therefore, it follows that their omission in 1982 does not warrant the inference drawn by the respondent.

If the interpretation of s.11 which I prefer, is the proper one, then the omitted subsections were never necessary to enable the purchaser of a partial interest in land to qualify for a grant.

The final submission for the respondent was based on s.9(3)(a) of the First Home Owners Act 1983 which received the Royal Assent on 21 September 1983. That provision is as follows:-

"(3) -

For the avoidance of doubt it is declared
that, for the purposes of this section -

(a) the purchase by a person or persons
of an interest in land, in an undivided
share in land or in a dwelling shall not
be taken to be the purchase of an
approved interest by reason only that the
interest so purchased, together with an
interest or interests already owned by
the purchaser or any of the purchasers,
constitutes an approved interest; . . .".

I do not accept the contention that the declaratory law contained in Act No. 46 of 1983 can assist in the interpretation of the 1982 Act. In any event, if Parliament intended the law applicable to applications under the 1982 Act to be construed in the same manner as the First Home Owners Act 1983 (No.46 of 1983) it could have taken the opportunity to say so when it enacted the  Home Deposit Assistance Amendment Act 1983  (No.47 of 1983), which in fact included an amendment to s.11 of the 1982 Act.

There is an explanation for including in the First Home Owners Act 1983 the declaratory statement to be found in s.9(3). The 1983 Act precludes any person who, prior to the date of contract to purchase has owned a dwelling in Australia from making application for financial assistance. (S.14(2)(b)(i). It is essentially a First Home Owners Act. But the 1982 Act is not so rigid. It disqualifies an applicant who has owned another dwelling in Australia from obtaining a grant unless the Director-General is satisfied that it would be unreasonable to regard that dwelling as (his) principal place of residence.

The prohibition in the 1983 Act makes it necessary to ensure that a person already owning say, half a dwelling, cannot succeed where a person who has owned a whole dwelling must necessarily fail. The reference to "another dwelling" in s.18(1)(a) of the 1982 Act does not preclude a part owner from purchasing a remaining interest in the same dwelling and still qualifying for a grant.

The respondent conceded that the applicants are entitled in all other respects to a grant if his interpretation of the Act is not upheld.

Accordingly, the decision of the respondent of 3 September 1982 is set aside. In substitution therefor it decides that the applicants are entitled to a grant in accordance with the provisions of the Home Deposit Assistance Act 1982.