Lewis v Commissioner for State Revenue
[2022] QCAT 109
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- Unreported Judgment
- Lewis v Commissioner for State Revenue[2022] QCAT 109
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Lewis v Commissioner for State Revenue[2022] QCAT 109
Lewis v Commissioner for State Revenue[2022] QCAT 109
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Lewis v Commissioner for State Revenue [2022] QCAT 109 |
PARTIES: | sarah jane lewis & scott christopher lewis (applicant\appellant) v commissioner for state revenue (respondent) |
APPLICATION NO/S: | GAR424-21 |
MATTER TYPE: | General Administrative Review |
DELIVERED ON: | 2 September 2022 |
HEARING DATE: | 9 August 2022 |
HEARD AT: | Brisbane |
DECISION OF: | Member Richard Oliver |
ORDERS: |
|
CATCHWORDS: | TAXES AND DUTIES AND HOME OWNERS GRANT – ADMINISTRATIVE DIRECTION – QUEENSLAND – where applicants entered into a building contract with a builder – where contracting builder did not hold a builder’s licence – where nominee licenced builder named on the contract – where applicants applied for the HomeBuilder grant – where application for grant rejected for non-compliance with the Administrative Direction relating to the grant – whether building contract was a comprehensive contract as defined in clause 14 of the Administrative Direction – whether reference to “builder” in clause 14 should be construed as a builder licensed under the Queensland Building and Construction Act Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 21 and s 24 Queensland Building and Construction Commission Act 1991 (Qld), s 71, s 72 First Home Owner and Other Home Owner Grants Act 2000 (Qld) CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Federal Commissioner of Taxation v Consolidated Media Holdings (2012) 250 CLR 503 Momcilovic v The Queen (2011) 245 CLR 1 Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 |
Appearances and Representation: |
|
Applicants appeared: | In person |
Respondent: | Ms Sargent of counsel instructed by the Respondent |
REASONS FOR DECISION
Background
- [1]Mr and Mrs Lewis are the owners of land at Upper Coomera (“the land”). On 21 December 2020 they entered into a standard form Queensland Building and Construction Commission Contract (“the contract”) with a corporate entity, Freedom Homes Qld Pty Ltd, for the construction of a new home on the land. The contract price was $324,000.
- [2]Freedom Homes did not hold a builders licence issued under the Queensland Building and Construction Commission Act (“QBCC Act”) at the time it entered into the contract with the Applicants. It did however nominate a licenced builder’s number in Schedule 1, item 3 of the contract as “24194”. It is not controversial that Darrin Wilson is the holder of that licence number. The licence class is ‘builder – low rise’. He is licenced to construct a house of the type specified in the contract between the Applicants and Freedom Homes.
- [3]As the contract was entered into between 4 June 2020 and 31 March 2021, it attracted the Commonwealth’s HomeBuilder Grant administered under the First Home Owner and Other Home Owner Grants Act 2000 (Qld). That is, for an eligible transaction and compliance with the Administrative Direction (“the Direction”) issued jointly by the Queensland State Government and the Australian Government, a homeowner can receive a grant of $25,000 for a new home.
- [4]The Applicants applied for the grant on the basis that they had met all of the criteria under the Direction. On 24 June 2021 the Commissioner rejected the application. The Commissioner contends the contract was not an “eligible transaction” under the Direction for two reasons:
- Paragraph 14 of the Administrative Direction requires a person who enters into the contract to carry out building work to be appropriately licenced, in order for the contract to be a “comprehensive home building contract” – and so be an “eligible transaction”; and
- Paragraph 6 of the Administrative Direction provides that “a transaction is not an eligible transaction if the building work will be performed by a person who does not hold a licence to carry out the builder (sic) work under the Queensland building and Construction Commission Act 1991 that was issued prior to 29 November 2020”.[1]
- [5]The Applicants have filed an application to review that decision. The Tribunal’s function under s 20 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) is to produce the correct and preferable decision. The Applicants have made brief submissions in the review application and made further brief submissions at the hearing of the application. The Commissioner has filed comprehensive submissions and relies on the documents file under s 21 of the QCAT Act. It was conceded by both parties at the commencement of the hearing that there was no dispute of fact and the correct and preferable decision turns on the application of the Direction to the circumstances of this case.
- [6]To gain some understanding as to how the grant is administered the starting point is the Program Guidelines[2]. Relevant to this application are the following:
- Paragraph 6: Construction must be undertaken by a registered or licensed building service ‘contractor’ who is named as a builder on the building licence or permit.
- Paragraph 15: It is intended that owner-occupiers will be eligible for the HomeBuilder, whether the contract is with a licensed or registered builder or developer, in either case, a valid copy of the licence or registration would need to be provided to the applicant showing a licence or registration date prior to 4 June 2020.
- [7]One then turns to the Direction which set out the criteria relevant to this application. Firstly, what is meant by eligible transaction as defined in paragraph 1(b):
A comprehensive home building contract made by the freehold owner of Queensland or a person who will, prior to completion of the comprehensive home building contract be the freehold owner of land in Queensland, to have a new home built on the land, if the contract commencement date is between 4 June 2020 and 31 March 2021 (both dates inclusive), and the construction commencement date is on or after the contract commencement date and within 6 months of the contract commencement date.
- [8]The next relevant criteria is the “licensed builder requirements for eligible transactions”. Paragraph 6 of the Directions is relevant here. It provides that:
If the contract commencement date is on or after 29 November 2020, a transaction is not an eligible transaction if the building work (as defined in the QBCC Act) will be performed by a person who does not hold a licence to carry out the building work under the Queensland Building and Construction Commission Act 1991 that was issued prior to 4 June 2020.
- [9]The third criteria relied on by the Commissioner is that the contract is not a “comprehensive home building contract” as it does not meet the definition set out in paragraph 14 of the Direction.
A comprehensive home building contract means a contract under which a builder undertakes to build a home from the start of the building work to the point where the home is ready for occupation and, if for any reason, the work to be carried out under the contract is not completed, includes any further contract under which the work is to be completed.
- [10]The reason for this is that Freedom Homes was not, at the time of entry into the contract with the Applicants, licenced by the QBCC. That is not disputed. However, the question for determination is whether that is a requirement to satisfy the definition.
- [11]Dealing first with the Guidelines, they obviously envisage that the building work is undertaken for a licensed/registered contractor. Although paragraph 15 also envisages that the contract will be with a licenced/registered builder or a developer, it is mainly concerned with ensuring that the applicant is made aware that the licence/registration date is before 4 June 2020. The important feature is that the building work is undertaken by a licenced builder as was the case here.
- [12]Clause 14 of the Direction does not make any reference to “a builder” having to be licenced by the QBCC. The Commissioner contends that given the context and purpose of the Guidelines and the Direction[3] it is implicit that the reference to “a builder” must be a reference to a builder licenced by the QBCC. In support of this contention the Commissioner relies on principles of statutory interpretation:
- While interpretation must start and end with consideration of the text, [4] context should be considered at the first stage of the analysis;[5]
- While the text is prima facie to be given its ordinary meaning, considerations of context and purpose may suggest that some other meaning of a word is intended[6] - although it is not possible to give the words of a provision a meaning they cannot reasonably bear;[7]
- The term “context” is used in its “widest sense”,[8] and includes other provisions of an instrument;[9] and existing state of the law,[10] and
- Generally, any extrinsic material that is relevant to context may be considered and reference to extrinsic material is permitted at common law without first identifying ambiguity in the provision.
- [13]Obviously one cannot cavil with the statements of principle relating to statutory interpretation referred to above. However, because the Commissioner’s submission is predicated on the notion that clause 14 of the Direction is ambiguous and when read in context, reference to “builder” should mean a builder licenced under the QBCC Act, the question is whether such a process is necessary to give effect to clause 14? In other words should the text be given its plain ordinary meaning rather than attempting to impute words that deviate from the plain intended meaning of the word when having regard to the overall context, in particular clause 6 which addresses any shortcomings that might result in not applying the expanded definition urged by the Commissioner.
- [14]There is no factual dispute that Freedom Homes is a builder, meaning that it is competent to carry out the task of building a new home. Because it is an incorporated entity, it does so through its named nominee and licensed builder, Mr Wilson. The obligations imposed on Freedom Homes for the construction are governed by the written contract entered into between it and Mr and Mrs Lewis. There is no dispute that Freedom Homes discharged all of its obligations under the building contract and also in terms of clause 14 of the Direction “to build a home from the start of the building work to the point where it was ready for occupation”.
- [15]The purpose of the implementation of the HomeBuilder grant was to incentivise the construction of new homes to provide a financial boost to the building industry during the worst of the Coronavirus pandemic. It also, obviously, provides financial assistance to those homeowners who satisfy the income criteria and enter into contracts with builders for a new home or major renovation. To give effect to this incentive, a comprehensive construction contract had to be entered into between the home-owner and a builder.
- [16]The first point to make about clause 14 is that, on its face, there is no ambiguity. It means what it says in that a builder undertakes to build a home under the contract. Had it been intended to impose a condition that the builder referred to in clause 14 was required to hold a QBCC licence, that could have been included in clause 14, by including words such as ‘a licenced builder’ or by way of a definition section defining “builder” in the Direction. However, that is not the case. The protections for the home-owner under the QBCC Act appears in clause 6.
- [17]Therefore, to ensure that the building work is carried out in accordance with all relevant building regulations, codes and standards, clause 6 stipulates that the transaction is not an eligible transaction if the building work is performed by a person who does not hold a QBCC licence. Read in the positive, it says that the building work must be carried out by a person with a QBCC licence. What it does not say is that the building contract is not an eligible transaction if the contracting party, e.g. Freedom Homes, does not hold a building licence. The is no confusion on the face of the Direction. A licenced builder must undertake the building work and the contract must be with a builder. They do not, necessarily have to be one and the same. This is consistent with the operation of the QBCC Act, by the use of nominees, and the oversight of building works by the QBCC.
- [18]Here the licensed nominee Mr Wilson holds a low-rise builders licence. He is named on the contract and is therefore subject to any direction from the QBCC to rectify any defective building work.[11] Failure to comply with any direction exposes him to disciplinary action, and also liable for any recovery of the cost to rectify or complete building work under the QBCC Home Warranty Insurance Scheme as he is named on the contract.[12] The very reason Mr Wilson is named as the nominee on the contract is to comply with the QBCC Act, in circumstances where Freedom Homes was waiting for its licence to be issued. Even, so Mr Wilson was to be, and now is, the licenced nominee for Freedom Homes.
- [19]Although the Commissioner made reference to Project Blue Sky[13] the full text of [69] – [70] is instructive here:
Conflicting statutory provisions should be reconciled so far as is possible
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed.
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
- [20]When considering the circumstances here and having regard to what was said in Project Blue Sky above that, “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”, sits comfortably with reference to a builder without the added descript words contended for the by the Commissioner. On its plain reading of the Direction and the context, there is no ambiguity with the reference to “builder” in clause 14. It does not have to be read down to infer “a builder” necessarily is a reference to licenced builder because any mischief resulting from the absence of a reference to licenced builder is remedied by the requirements in clause 4 to ensure the grant is only paid on an eligible transaction.
- [21]Put another way, there is no need to put a gloss on the words “a builder” when all of the protections under the QBCC Act to both the home owner and the donee of the grant are provided by the nominee, Mr Wilson. When read this way the Direction achieves the objects of the provisions that are intended to give effect to harmonious goals of providing grants to stimulate the building industry.[14]
- [22]I have therefore come to the view that the applicant’s entered into a comprehensive home building contract within the meaning of clause 14, resulting in an eligible transaction under clause 6 of the Direction. Pursuant to s 24(1)(b) of the QCAT Act the Commissioner’s decision should be set. The correct and preferable decision is that the applicants’ application for the HomeBuilder grant be allowed.
Footnotes
[1] Commissioner’s submissions filed 5 April 2022.
[2] Ibid page 134 -135
[3] SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at [14]
[4]Federal Commissioner of Taxation v Consolidated Media Holdings (2012) 250 CLR 503 at [39
[5] STAZL at [14]
[6]STAZL at [14
[7] Momcilovic v The Queen (2011) 245 CLR 1 at [39]
[8] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 384 at 408
[9] Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]
[10] CIC Insurance, supra
[11] QBCC Act s 72.
[12] QBCC Act s 71(2).
[13] Supra footnotes omitted.
[14] Project Blue Sky supra.