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Whaikawa v Commissioner of State Revenue[2018] QCAT 435

Whaikawa v Commissioner of State Revenue[2018] QCAT 435

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Whaikawa v Commissioner of State Revenue [2018] QCAT 435

PARTIES:

RENEE TERESA WHAIKAWA

(applicant)

v

COMMISSIONER OF STATE REVENUE

(respondent)

APPLICATION NO/S:

GAR091-18

MATTER TYPE:

General administrative review matters

DELIVERED ON:

19 December 2018

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Browne

ORDERS:

The decision of the Commissioner of State Revenue to confirm the decision to refuse Renee Teresa Whaikawa’s application for the first home owner grant is confirmed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – first home owner grant – where application made for first home owner grant was refused – where objection made – where the decision to refuse the application was confirmed – where the applicant seeks a review – meaning of ‘interested person’ for the purposes of s 17 of the First Home Owner Grant Act 2000 (Qld) – whether all interested persons must apply for the grant – whether all applicants must comply with the eligibility criteria

Acts Interpretation Act 1954 (Qld), s 14A

First Home Owner Grant Act 2000 (Qld), s 4, s 5(1)(b), s 7, s 8(1)(a), s 10, s 14, s 17, s 60, Schedule

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 21

REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

  1. [1]
    Renee Teresa Whaikawa together with her spouse and parents purchased a block of land for the purpose of building two homes. The land was purchased in all four names. One of the houses built would be occupied by Ms Whaikawa, her husband and children. The other house, to be built after the first house, would be occupied by Ms Whaikawa’s parents. Ms Whaikawa applied for a first home owner grant under the First Home Owner Grant Act 2000 (Qld) (‘the Act’).
  2. [2]
    The Commissioner determined that all interested persons must be included in the application and because the title for the land was held in four names, including Ms Whaikawa and her spouse, the application should have be made by Ms Whaikawa, her spouse and her parents.
  3. [3]
    The Commissioner further determined that Ms Whaikawa does not have an eligible transaction and refused her application under s 10 of the Act. This is because Ms Whaikawa’s parents who are named on the title for the land held a relevant interest in another residential property
  4. [4]
    Ms Whaikawa was dissatisfied with the Commissioner’s decision and lodged an objection on two grounds: firstly, Ms Whaikawa’s parents are not ‘interested persons’ within the meaning of s 17(1) of the Act and the Commissioner was wrong to decide that their shared ownership of the property or an ‘interest in land’ is an ‘interest in the grant’. Further, Ms Whaikawa’s parents do not wish to apply for or receive the grant because it is payable for the construction of a home at the property which is to benefit Ms Whaikawa not her parents; and secondly, s 14(1) of the Act does not apply because Ms Whaikawa’s parents are not applicants who held a relevant interest in residential property in Queensland before 1 July 2000.
  5. [5]
    Ms Whaikawa’s objection was not successful and she now wants to review the Commissioner’s decision to confirm the decision to refuse her application for the grant.

What is the Tribunal’s power on review? 

  1. [6]
    In exercising its review function, the Tribunal conducts a fresh hearing on the merits to arrive at the correct and preferable decision.[1] The review proceeds before the Tribunal by way of a reconsideration of the evidence that was before the Commissioner when the decision was made, unless the Tribunal considers it necessary in the interests of justice to allow new evidence; and in deciding the review the Tribunal exercises the same law that applied to the making of the original decision.[2] Further, the grounds on which the application for review is made are limited to the grounds of the relevant objection unless the Tribunal otherwise orders.[3]
  2. [7]
    In this matter, the Tribunal directed that Ms Whaikawa’s application to review be decided on the papers by written submissions from the parties and without an oral hearing.[4] Although the Tribunal has considered all of the material filed in the review proceeding by Ms Whaikawa, including a statement prepared by Ms Whaikawa’s parents, the review proceeds by way of a reconsideration of the evidence that was before the Commissioner when the decision was made.[5] Further, as set out above, the grounds on which the application for review is made is limited to the grounds of objection outlined in the Commission’s statement of reasons.[6]

What does Ms Whaikawa say?

  1. [8]
    The issue that arises on review is whether Ms Whaikawa’s parents are interested persons for the purposes of s 17 of the Act and therefore must be applicants. Further, whether s 14 of the Act applies because Ms Whaikawa’s parents held a relevant interest in residential property in Queensland before 1 July 2000. If Ms Whaikawa’s parents are considered to be interested persons who must be applicants and s 14 of the Act applies, then Ms Whaikawa’s parents as two of the four applicants will not satisfy the eligibility criteria.[7]
  2. [9]
    Ms Whaikawa says that the Act is unclear as to who is an ‘interested person’ and that the words ‘interest’ pertain to an interest in the grant money.[8] Ms Whaikawa says that the Commissioner has overlooked her earlier submissions that mention the Act. Ms Whaikawa says that the Commissioner continues to interpret the Act unfairly in applying the Act to ‘the situation’.[9] Ms Whaikawa submits that her parents do not own the home and the onus is on the Commissioner to produce evidence that she and her husband are ineligible.[10]
  3. [10]
    The issue raised by Ms Whaikawa is one of statutory interpretation. More importantly, the proper construction of s 17 of the Act and the meaning of ‘an interested person’.

Legislative framework

  1. [11]
    A grant is payable under the Act if each applicant complies with the eligibility criteria and the transaction for which the grant is sought is an eligible transaction.[11] Only one grant is payable for the same eligible transaction. Relevantly, s 10 of the Act provides as follows:

10 When grant is payable

  1. (1)
    A first home owner grant is payable on an application under this Act if—
  1. (a)
    the applicant or, if there are 2 or more of them, each of the applicants complies with the eligibility criteria; and
  1. (b)
    the transaction for which the grant is sought—
  1. (i)
    is an eligible transaction; and
  1. (ii)
    has been completed.

Note—

For authorisation of payment of the grant before the completion of the eligible transaction, see section 19(2).

  1. (2)
    Despite subsection (1)(a), an applicant need not comply with the eligibility criteria to the extent the applicant is exempted from compliance under this Act.
  1. (3)
    Only 1 first home owner grant is payable for the same eligible transaction.
  1. [12]
    Division 2 of the Act sets out relevant criteria for eligible applicants such as, amongst other things the applicant must be a natural person and at least 18 years of age, an Australian citizen or permanent resident, and the applicant or applicant’s spouse must not have had relevant interest in residential property.[12]
  2. [13]
    Section 17 of the Act provides that all interested persons must be applicants. An interested person is a person who is, or will be, on completion of the eligible transaction, an owner of the relevant home. Section 17 provides as follows:

17 All interested persons to join in application

  1. (1)
     All interested persons must be applicants.
  1. (2)
     For subsection (1), an interested person is a person who is, or will be, on completion of the eligible transaction to which the application relates, an owner of the relevant home, other than a person prescribed under a regulation.
  1. [14]
    An ‘owner’ is, for a home, a person who has a relevant interest in the land on which the home is built.[13] For ‘land’ an ‘owner’ is a person who has a ‘relevant interest in the land’.[14]
  2. [15]
    A ‘relevant interest’ is defined under s 8(1)(a) of the Act and includes ‘an estate in fee simple in the land’. Further, ‘residential property’ is defined in the Schedule as land that has a building that is a place of residence:

residential property means land in Australia that, at a particular time, has a building on it that is lawfully occupied as a place of residence or is suitable for occupation as a place of residence.

  1. [16]
    Section 5 of the Act defines an ‘eligible transaction’ to include, amongst other things, a comprehensive home building contract made by the owner of land, or a person who will on completion of the contract be the owner of land, to have a new home built on the land, if the contract is made on or after 1 July 2000. Relevantly, s 5(1)(b) provides as follows:
  1. (1)
    An eligible transaction is—

  1. (b)
    a comprehensive home building contract made by the owner of land in the State, or a person who will on completion of the contract be the owner of land in the State, to have a new home built on the land, if the contract is made on or after 1 July 2000; …

Is Ms Whaikawa eligible for the grant?

  1. [17]
    Ms Whaikawa’s application for a grant concerns a contract to build a house on land situated at 21 Celeste Court, Springwood described as Lot 5 on SP222869 (‘the land’).
  2. [18]
    It is non-contentious that the registered owners of the land at the time Ms Whaikawa applied for the grant were Ms Whaikawa, her spouse and her parents. Ms Whaikawa’s parents together with Ms Whaikawa and her spouse are responsible for all rates payable with respect to the land as evident from the Logan City Council rates notice issued to Ms Whaikawa, her spouse and parents.[15] It is open for me to find that as the registered owners of the land, Ms Whaikawa, her spouse and her parents have an estate in fee simple in the land and therefore have a ‘relevant interest’ in the land for the purposes of s 8 of the Act.
  3. [19]
    Section 17 of the Act must be interpreted in a way that best achieves the purpose of the Act.[16] The Act clearly provides that all applicants comply with the ‘eligibility criteria’ for a first home owner grant.[17] Further, the Act provides, as stated in s 7, that a person is a ‘home owner’ or ‘owner’ of a home if the person has a relevant interest in the land on which the home is built. Ms Whaikawa’s parents may not live in the house built on the land but they, as two of the registered owners of the land, have a ‘relevant interest’ in the land.
  4. [20]
    The Act clearly provides that all interested persons must be applicants; and that all applicants comply with the eligibility criteria.[18] Further, only one first home owner grant is payable for the same ‘eligible transaction’.[19] There is no ambiguity as to who is an ‘interested person’ for the purposes of s 17 of the Act. A plain reading of s 17 and the Act as a whole clearly contemplates that all interested persons that is an owner of the home and more broadly, a person who has a relevant interest in the land on which the home is built, must be applicants.[20]
  5. [21]
    An interpretation of ‘interested person’ that, as submitted by Ms Whaikawa, includes only the person or persons who have an interest in the grant and/or house built on the land would not best achieve the purpose of the Act. This is because it could result in more than one grant for the ‘eligible transaction’ if, for example, more than one house is built on the land; or a grant for the eligible transaction where one or more of the owners of the land on which the house is built is not a first home owner. As I have set out above only one grant is payable for the same eligible transaction and all applicants must comply with the eligibility criteria such as to not have had a relevant interest in residential property.
  6. [22]
    Further, an interpretation of s 17 of the Act that an interested person is ‘an owner’ of the relevant home who, for example, has an interest in the grant and/or house being built on the land, would require a strict interpretation of s 17(2). Section 17 must be read together with the Act as a whole and interpreted in a way that best achieves the purpose of the Act. That is to establish a scheme for the payment of grants to first home owners. The ‘eligibility criteria’ are the criteria for deciding whether an applicant for the grant is eligible for the grant.[21] Under s 10 of the Act, the grant is payable if each of the applicants comply with the eligibility criteria and the transaction is an eligible transaction.
  7. [23]
    Section 5 defines ‘eligible transaction’ as, amongst other things, a home building contract made by the owner of land to have a new home built (emphasis added). Further, the Schedule defines ‘owner’ as a person who has a relevant interest in the land (emphasis added). A person is a home owner or owner of a home if the person has a relevant interest in the land on which the home is built (emphasis added).[22]
  8. [24]
    Ms Whaikawa says that her parents do not have an interest in the grant or home or even the land the home is attached to, which is accessible to all.[23] Ms Whaikawa says that the Commissioner is ‘ignorant of the Act’ and the Commissioner’s interpretations of the Act are ‘discriminatory’.[24]
  9. [25]
    Ms Whaikawa does not dispute however that her parents hold an interest in the land on which the home is built and that her parents held a relevant interest in residential property in Queensland before 1 July 2000. As I have set out above, the grant is payable if all applicants comply with the eligibility criteria. I have found that Ms Whaikawa’s parents hold a relevant interest in the land on which the home is built and are an ‘interested person’ for the purposes of s 17 of the Act. This means that Ms Whaikawa, her spouse and her parents must be applicants for the grant. Unfortunately, Ms Whaikawa is not eligible for the grant because all interested persons did not apply for the grant as required under s 17 of the Act. Further, Ms Whaikawa’s parents as owners of the land, together with Ms Whaikawa and her spouse, upon which Ms Whaikawa’s home is built do not satisfy the eligibility criteria. This is because Ms Whaikawa’s parents, as previous owners of property before 1 July 2000, do not satisfy the eligibility criteria in particular s 14 of the Act.
  10. [26]
    There is no ambiguity as to the meaning of an ‘interested person’ for the purposes of s 17 of the Act as it applies to Ms Whaikawa’s circumstances with respect to her application for the grant. Ms Whaikawa may consider that the Act as it applies to her situation is unfair because her parents are not residing in the home built on the land. This is not a reason however for approving the grant under the Act. The Act and more importantly s 17 clearly applies to Ms Whaikawa’s application for the grant. The Act provides that only one grant is payable for the eligible transaction and all interested persons must be applicants. Ms Whaikawa, her spouse and parents as ‘interested persons’ of the land must be applicants. Even if Ms Whaikawa, her spouse and parents applied for the grant, the grant would not satisfy the criteria for an eligible transaction because Ms Whaikawa’s parents previously owned residential property. The correct and preferable decision is to confirm the Commissioner’s decision to refuse Ms Whaikawa’s application for a grant under the Act.

Footnotes

[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 20.

[2]The Act, s 60.

[3]Ibid, s 60.

[4]Directions dated 18 July 2018.

[5]See application to review a decision filed 14 March 2018, applicant’s submissions filed on 31 July 2018, applicant’s reply filed on 17 September 2018, material filed by the respondent on 24 April 2018, respondent’s preliminary submissions filed 11 May 2018 and submissions in reply filed 10 September 2018.

[6]See material filed by the respondent on 24 April 2018 in accordance with s 21 of the QCAT Act, pages 1-6.

[7]The Act, s 10.

[8]Applicant’s reply filed 17 September 2018.

[9]Ibid.

[10]Ibid.

[11]The Act, s 4, s 5 and s 10.

[12]The Act, s 14.

[13]The Act, Schedule and s 7.

[14]Ibid.

[15]Material filed under s 21, attachment number 10N.

[16]Acts Interpretation Act 1954 (Qld), s 14A

[17]The Act, s 4.

[18]Ibid, s 17, s 10.

[19]Ibid.

[20]Ibid, s 7, s 17, Schedule.

[21]The Act, s 4.

[22]The Act, s 7 and see s 8, a relevant interest in land is ‘an estate in fee simple in the land’.

[23]Applicant’s reply filed 17 September 2018.

[24]Ibid.

Close

Editorial Notes

  • Published Case Name:

    Renee Teresa Whaikawa v Commissioner of State Revenue

  • Shortened Case Name:

    Whaikawa v Commissioner of State Revenue

  • MNC:

    [2018] QCAT 435

  • Court:

    QCAT

  • Judge(s):

    Member Browne

  • Date:

    19 Dec 2018

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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