Case: Re Taylor; Ex parte Natwest Australia Bank Limited (1992) 37 FCR 194
Outcome: applied
In Re Taylor; Ex parte Natwest Australia Bank Limited (1992) 37 FCR 194 at 197 Lockhart J said, in a statement that is now settled law: 'I shall not attempt to give any comprehensive definition of the word "resident". It has no technical or special meaning for the purposes of the Act. Nor do the words "ordinarily resident" have any such technical or special meaning. They are ordinary English words. Whether a debtor is ordinarily resident in Australia is a question of fact and degree.' His Honour further noted at 198: 'To say that a person is ordinarily resident in Australia must mean something more than that he is resident in Australia. The word "ordinarily" connotes a comparison, a measure of degree. A person may have more than one residence, but he is not necessarily ordinarily resident in each of them. The question must be determined for the purposes of s 43 of the Act at a particular time. One must ask the question whether at that time the person was ordinarily resident in Australia. The concept of "ordinary residence" for the purposes of the Act, in my opinion, connotes a place where in the ordinary course of a person's life he regularly or customarily lives. There must be some element of permanence, to be contrasted with a place where he stays only casually or intermittently. The expression "ordinarily resident in" connotes some habit of life, and is to be contrasted with temporary or occasional residence...' (emphasis added) 7 In Taylor, whilst Lockhart J considered that ordinary residence required a degree of regularity or permanence, his Honour also expressed the view (at 198) that a person might have more than one ordinary residence: 'A person may have two places of residence; for example, a city flat and a country house. He may regularly live in each. He cannot be physically present in both at the same time, but he may be resident (or ordinarily resident) in each at the same time. People may come and go from the place in which they are ordinarily resident in a large variety of circumstances and on various occasions. It is always a question of fact and degree. ... At first blush it may seem strange to say that a person can be ordinarily resident in more than one country at the same time; but on closer analysis it is not. Plainly you cannot be physically present in more than one place at the same time. But the lifestyles of people vary greatly. Some people in the ordinary pursuit of their lives regularly or customarily live in more than one place, each of which has an element of permanence about it and is not merely a place of casual or intermittent resort." 9 The extracts from Vassis and Taylor above both focus on the conduct and habits of the debtors in question however, in their respective judgments, both Burchett J and Lockhart J also referred to the debtors' statements or beliefs regarding their residency. In Taylor Lockhart J placed significant reliance on outgoing and incoming passenger cards, on which the debtor had recorded that he was an Australian resident, either leaving Australia temporarily or returning from a temporary absence. Although his Honour stated (at 200) that '[o]f course, statements by persons on migration forms are not definitive of their truth', in the context of the rest of the evidence his Honour found the passenger cards persuasive. In Vassis , Burchett J also referred to a departing passenger card in which the debtor indicated that he was an Australian resident, and to the debtor's evidence that he intended to come back to Australia to live permanently after his trip to Greece. Burchett J found that the debtor was ordinarily resident in Australia throughout the two year period that he spent living in Greece.