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  4. Taske v Commissioner for State Revenue - [2022] QCAT 416

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Taske v Commissioner for State Revenue[2022] QCAT 416

Taske v Commissioner for State Revenue[2022] QCAT 416

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Taske v Commissioner for State Revenue [2022] QCAT 416

PARTIES:

Nicola Jay taske

(applicant)

v

commissioner for state revenue

(respondent)

APPLICATION NO/S:

GAR037-22

MATTER TYPE:

General Administrative Review

DELIVERED ON:

21 December 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Richard Oliver

ORDERS:

  1. The decision of the Respondent is set aside.
  2. The Applicants’ application for the HomeBuilder Grant be allowed.

CATCHWORDS:

TAXES AND DUTIES AND HOME OWNERS GRANT – ADMINISTRATIVE DIRECTION – QUEENSLAND – where applicants entered into a building contract with a builder – where the building contract excluded waterproofing and tiling – where the applicants engaged a contractor to do the waterproofing and tiling – where builder completed the construction of the home under the building 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 builder undertook all of the building work under the contract

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

Queensland Building and Construction Commission Act 1991 (Qld), s 71, s 72

First Homeowner and Other Homeowner Grants Act 2000 (Qld)

Act Interpretation Act 1954 (Qld)

Building Act 1975 (Qld)

Blue Metal Industries Ltd v Dilley (1969) 117 CLR 651

CSR Limited v WorkCover Queensland [2022] QCA 204

Kehl v Board of Engineers [2010] QCATA 58

Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355

Wallaby Grip (BAE) Pty Limited (in liq) & Anor v Workcover Queensland

APPEARANCES &

REPRESENTATION:

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

Background

  1. [1]
    On 12 November 2020 Mrs Taske and Mr Taske entered into a building contract (“the Parkside contract”) with Parkside Constructions (NQ) Pty Ltd (“the builder”)  for the construction of a new home in the suburb of Shaw in the Townsville area. The contract price was $227,9000 inclusive of GST. Although the Taskes have not nominated a date for handover, presumably this was achieved in accordance with the contract.
  2. [2]
    In addition to the contract with the builder, the Taskes also entered into a separate Basic Works Contract (Residential) (“the Everlast contract”) with Everlast Tiling Pty Ltd to undertake waterproofing and tiling of wet areas of the house. It did not include the supply of various plumbing items particularised in the Reece Schedule supplied by the Taskes.[1] The contract price for this work was $9,528.40 inclusive of GST. The waterproofing and tiling of wet areas was carried out during the build. This work was specifically excluded from the contract with the builder in Schedule 3 of the building contract. The reason for the separate tiling contract with Everlast was because the builder could not supply the particular tiles the Taskes wanted for the wet areas. It would seem the builder was content with the arrangement for Everlast to waterproof the wet areas and supply and fix the tiles. In any event, there is no factual dispute about any of these matters.
  3. [3]
    As the building 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 State Government and the Australian Government, a homeowner can receive a grant of $25,000 for a new home.
  4. [4]
    The Applicants applied for the grant on the basis that they had met all of the criteria under the Direction. On 30 August 2021 the Commissioner rejected the application. The Commissioner contends the contract was not an “eligible transaction” under the Direction because:
    1. (a)
      A comprehensive home building contract is defined in paragraph 14 of the Administrative Direction to mean a contract under which a builder undertakes to build a home from the start of building work to the point where the home is ready for occupation.
    2. (b)
      For a class 1a dwelling to be ready for occupation, water proofing and tiling to wet areas must be completed. As the builder has not taken responsibility for the completion of all of these works under your contract, the builder has not undertaken to build a home from the start of building work to the point where the home is ready for occupation.
  5. [5]
    The Taskes objected to the decision and sought an internal review. The internal reviewer  upheld the initial decision  for the same reasons.
  6. [6]
    The Taskes then filed  an application to review that decision in the Tribunal. They contend in the filed application to review that:

We entered into two contracts (HIA & Master Builders) to build our home to completion. The Commissioner has ruled that in accordance with the “Administrative Directive” that this is not a ‘Comprehensive Building Contract’ and therefore we are not eligible for the Grant. We argue that these two contract formed a comprehensive contract”

  1. [7]
    In essence what they are submitting is that the obligation of the builder was to build a home from the start to the point where it was ready for occupation. Also the tiling contract was collateral to and consistent with the building contract and only formed a small part of the building works undertaken. Both contracts formed part of the basis for the loan approval provided by RAMS Home Loans. From their perspective they did not see that the works consisting of two contracts did not disentitle them to claim the grant because the builder had overall supervision of the build and was also ultimately responsible for the waterproofing and tiling.
  2. [8]
    The Tribunal’s function under s 20 of the Queensland Civil and Administrative Act is to produce the correct and preferable decision. That is review all of the material and produce a decision independent of that of the Commissioner. In other words, as has often been said, stand in the shoes of the Commissioner.[2]
  3. [9]
    Apart from the brief submissions made in the review application itself and the brief submissions in the objection to the Commissioner’s original decision, no other submissions have been filed in accordance with the usual directions to progress the application. Ms Taske, as a matter of courtesy, notified the Tribunal why she did not file any further submissions saying in an email to the Tribunal:

I do not know how to respond to the submission (the respondents). As I feared entering into this process, I am ill equipped to represent us, but am not in the position to pay for legal representation. So I guess the short answer is, I will not be responding…..

  1. [10]
    As matters stand there is little more she could say in response to the Commissioner’s statement of reasons. As I have said, the facts are not in dispute and the question for determination is firstly whether the Parkside Contract and the Everlast contract together satisfy the definition of a ‘comprehensive building contract’ in the Administrative Direction. Secondly, whether the stand alone Parkside contract  satisfies the definition of ‘comprehensive home building contract’.
  2. [11]
    The HomeBuilder grant arose out of an agreement between the Commonwealth and the States, referred to as the National Partnership on Homebuilder sets out the objectives and outcomes sought by the agreement. For the objectives:

The objectives of this Agreement is to:

  1. (a)
    Provide a framework to the parties to work co-operatively to support the residential construction industry through the Coronavirus crisis and build confidence in the sector over the short to medium term; and
  2. (b)
    Provide financial assistance to eligible owner-occupiers with the intent of increasing residential construction activity and maintaining direct and indirect residential construction jobs.
  1. [12]
    For the outcomes it provided:

This Agreement will facilitate achievement of the following outcomes:

  1. (a)
    Drive demand for new homes and substantial renovations, supporting increased residential construction activity;
  2. (b)
    Boost confidence in the residential construction sector to help Australia’s residential construction sector recover from the Coronavirus crisis; and
  3. (c)
    Assist eligible owner-occupiers seeking to build a new home or substantially renovate an existing home.
  1. [13]
    In short the National Partnership was designed to boost the construction industry at time when there was fear that the economy, and confidence in it, was at risk. Its purpose was also to assist homeowners build new homes or renovate existing homes.
  2. [14]
    After the initial announcement of the National Partnership which offered a grant of $25,000 for contract entered into for new homes 4 June 2020 and 31 December 2020,  it was later extended to March 2021.
  3. [15]
    To gain some understanding as to how the grant is administered the starting point is the Program Guidelines[3]. This sets out the principles for applicant eligibility and dwelling eligibility. The Taskes satisfy the eligibility criteria in the Guidelines and also that the work under their contract was undertaken by a registered or licensed building service contractor.
  4. [16]
    One then turns to the Administrative Direction. This sets out the criteria relevant to this application. Firstly, what is meant by eligible transaction as defined in paragraph 1(b) which is:

A comprehensive home building contract made by the freehold owner in 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.

  1. [17]
    The Commissioner contends that this is not an eligible transaction because the subject contract is not a “comprehensive home building contract” as it does not satisfy 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.

  1. [18]
    The Commissioner submits that the reason it does not satisfy the definition is because the definition does not contemplate a home owner entering into two contracts, as occurred here, for the construction of a single dwelling. Also, if reliance is only placed on the Parkside contract, then it still does not meet the definition because the builder did not undertake all of the work necessary to build the home from the start of the building work to the point where the home was ready for occupation. The building contract did not include an essential element of home construction which was the waterproofing and tiling of wet areas.[4] Accepting that to be the case for the moment, then as the Commissioner says, this work is necessary to make the home ready for occupation.

Does the existence of two contracts satisfy the Direction?

  1. [19]
    The Taskes submit that the two contracts should be considered together as one to satisfy the definition. The difficulty with that argument is that the definition is quite specific in that it is the ‘builder’ that has to undertake the work from start to finish. There is no dispute that Parkside is a builder and can build a compliant house from start to finish. By contrast Everlast, despite holding a licence under the Queensland Building and Construction Act 1991 (Qld) is not a builder. It cannot undertake the building of the house from start to finish.
  2. [20]
    Furthermore, the definition refers to “a contract”. Although s 32 of the Act Interpretation Act 1954 (Qld) provides that words in the singular generally include the plural, this only applies if the application of s 32 is not displaced wholly or partly by a contrary intention appearing in the Direction.[5] Also the Direction itself supports the adoption of the singular because the use of “a comprehensive home building contract” which envisages one contract. Also the eligibility criteria refers to “contract commencement date”, which again contemplates one contract.
  3. [21]
    There are other difficulties here with including the Everlast contract. Firstly, Mr Taske, as an applicant for the grant, is not a party to that contract. Secondly, the contract date is outside the eligibility dates for the grant as it was signed on 30 June 2021.
  4. [22]
    Although the definition of comprehensive building contract does refer to further contracts for non-competed work, the Everlast contract would still not qualify. That is because the reference to further work relates to work under the primary contract that could not be completed for “any reason”. Such a reason might be termination of the contract because of the builder’s default, liquidation of bankruptcy of the builder or perhaps loss of licence. These are only some examples, but an agreed exclusion of part of the contract works between the builder and the owner, as is the case here, is unlikely to be included in the definition. However, I make no definitive finding about that.
  5. [23]
    Therefore I do not accept the applicants submission that he two contracts constitute “a comprehensive building contract” within the definition.

The stand alone Parkside contract.

  1. [24]
    Under the Parkside contract the builder must build the home in accordance with the plans, specifications and satisfy all regulatory requirements, such as under the Building Act 1975 (Qld) and National Construction Code. Only when there is compliance with these obligations will the certifier, here Devcert,[6] issue a Form 21, being a final certificate.[7] That of course means that the builder had ensured the home was ready for occupation.
  2. [25]
    The Parkside contract imposes obligations on both the parties. Under clause 1 of the general conditions the builder must:
    1. (a)
      complete the works  in accordance with this contract; and
    2. (b)
      comply with all laws and lawful requirements of any statutory or other authority with respect to the carrying out of the works.[8]
  3. [26]
    The “works” are defined as the works to be carried out in accordance with the contract and contract documents. The “contract documents” include the general conditions of the contract, “the specification, the plans and other documents specified in item 16”.[9]  Although the plans are not in evidence it is reasonable to assume they delineate the wet areas to be tiled. The specification notes the wet arears and tiling are ‘by External Contractor (refer conditions detailed below & Page 8). Page 8 is a reference to the contractual exclusion of liability for the work.
  4. [27]
    However the specification for waterproofing involving an external contractor imposes specific obligations on the external contractor and confers rights to the builder:
  • External Contractor to complete Parkside Contractor paperwork including copies of QBCC License/s, Insurance & WorkCover prior to any work being carried out;
  • Install waterproofing Membrane & systems for prevent moisture penetration to Shower enclosures; wet area floor junctions in Bathroom, Ensuite, WC & Laundry to meet Australian Standard AS 3740-2-10;
  • Builder to inspect completed works prior to laying tiles;
  • Contractor to supply Builder with Form 16 Inspection Certificate & Warranty upon Completion.
  1. [28]
    Although it is not in evidence, it can be assumed the Form 16 referred to above was provided to the builder for the Form 21 to issue. Therefore, even though the builder does not actually do the waterproofing work, or directly engages a subcontractor to do it, the builder still has oversight and responsibility for the work to ensure the external contractor complies with all necessary regulatory processes. Similarly with the tiling the specification provide:
  • External Contractor to complete Parkside Contractor paperwork including copies of QBCC License/s, Insurance & WorkCover prior to any work being carried out;
  • Supply & Lay Tiles including adhesive, grout, diminishing strips, silicone, angles, shower recess topping, floor wastes etc to meet Australian Standard AS 3958.1.2007.
  1. [29]
    Therefore in these circumstances does the Parkside contract satisfy the definition of ‘a comprehensive building contract’ in the Direction? The first thing to note about that this the Direction itself informs as to the meaning of comprehensive home building contract. There is  no ambiguity in the terminology of the definition.
  2. [30]
    The first criteria is the necessity for a contract. Here there is a building contract entered into between the builder and the applicants for the construction of their new home at Shaw. By virtue of the obligations on the builder under the building contract, the builder “undertakes” to construct the home in accordance with the plans and specifications in return for payment of the contract price. The facts demonstrate that the builder built the home from the “start of the building work” that is the setting out of the foundations, pouring of the foundations and then the build. Then the builder continued with the build to “the point where the home was ready for occupation” and handover under the contract, and final certification, being the form 21.
  3. [31]
    What the definition does not say, as the Commissioner submits, is that the builder must undertake every critical part of the building work so that the builder produces satisfies the definition of “home” under the Direction, which would include the waterproofing and tiling of the wet areas, in this case.
  4. [32]
    In many cases the building of a new home could be subject to financial constraints on the homeowner. This might necessitate the owner sourcing some of the work or building materials at a cheaper price than the builder can supply. Or as occurred here, the Taskes supplying the plumbing fittings, purchased from Reece Plumbing. Does this then mean, that if this occurs the building contract is not a “comprehensive building contract”?
  5. [33]
    I should say in passing that although it seems the Commissioner made some issue of the Taskes supplying plumbing products, this was not a basis for rejecting the claim in the statement of reasons. The statement of reasons specifically refers to the Everlast contract and the work undertaken by it, which included; tile wall and floor, floor grates, waterproofing, silicone and tile supply for kitchen splashback and butlers pantry. Even if it was, the supply of these items to be fixed by the builder or the builders sub-contractor would disentitle the Taskes to the grant.
  6. [34]
    The Commissioner submits that “under the contract” indicates that the obligation of the builder should be found in in the contract and because of the exclusion, waterproofing, it cannot be said that Parkside has committed to carrying out “all of the building works” in the contract.[10]
  7. [35]
    The Commissioner also relies on the meaning of “undertakes” in the definition submitting that this means a commitment to build. Also, the definition of “home” in the Building Code of Australia applied through the Building Act 1975 (Qld). Then reliance is placed on s 115 of the Building Act 1975 (Qld) which prohibits a person form occupying or using a building that does not comply with the Building Code or the Queensland Development Code. The argument goes that as waterproofing of wet areas is an essential for the lawful use of the premises, as the builder did not do this work the Taskes fall foul of the definition.
  8. [36]
    Although the builder did not do the waterproofing or engage a contractor to do it, as I said above, insofar as the regulatory requirements are concerned, the builder took responsibility. Although the builder may not be contractually responsible it is responsible under the Queensland Building and Construction Commission Act 1991 (Qld).
  9. [37]
    Under clause 10 of the building contract the owner must give the builder exclusive possession of the site to carry out the works. It is only when the house reaches practical completion and there is a final inspection. Clause 23 of the building contract provides that the owner can only re-take possession when the contract price has been paid. Therefore contractually, it is the builder who hands the house over at the point it is ready for occupation.
  10. [38]
    The Commissioner’s submission on the interpretation or application of the Directions is, in my view, too restrictive and defeats the purpose of the Direction as a legislative instrument. In the recent case of Wallaby Grip (BAE) Pty Limited (in liq) & Anor v Workcover Queensland; CSR Limited v WorkCover Queensland [2022] QCA 204 the Court of Appeal provided a summary of the principles of statutory construction. At [22] the Court said:

[22] The relevant principles of statutory interpretation were not in dispute.

In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue,[11] the joint judgment said:

“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.”

[23] In Certain Lloyd’s Underwriters v Cross,[12] the joint judgment said:

“The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority, ‘[t]he 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’ (emphasis added). That is, statutory construction requires deciding what is the legal meaning of the relevant provision ‘by reference to the language of the instrument viewed as a whole’, and ‘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’.

Determination of the purpose of a statute or of particular provisions in a statute may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials. ... ‘[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have’ (emphasis added).”

[24] It is also relevant to note that s 14A of the Acts Interpretation Act 1954 (Qld) provides that, when interpreting a provision, the interpretation that will best achieve the purpose of the Act is to be preferred.

  1. [39]
    Having regard to these principles, insofar as there may be some uncertainty as to the proper construction and application of the definition, the construction of “comprehensive building contract’ that should be favoured is that which best achieves the purpose of the HomeBuilder Grant scheme. Also, as the High Court said in Project Blue Sky “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”.[13]  That aside, having regard to the factual circumstances as outline above, I find that the contract entered into with Parkside was a comprehensive building contract.
  2. [40]
    Therefore, the correct and preferable decision is that the Taske’s application for the HomeBuilder grant should be approved. As a consequence, the Commissioner’s decision is set aside and there be a fresh decision accordingly.

Footnotes

[1] Respondent’s statement of reasons (“SOR”) page 219

[2] Kehl v Board of Engineers [2010] QCATA 58.

[3] Respondent’s statement of reasons (“SOR”) page 276

[4]National Construction Code Part  3.8.1 page 32 of the respondents preliminary submissions.

[5]Blue Metal Industries Ltd v Dilley (1969) 117 CLR 651; Respondent’s preliminary submission para 53.

[6]SOR page 146.

[7]The form 21 has not been included in the s 21 documents.

[8]SOR page 175.

[9]SOR page 193.

[10] Commissioner’s preliminary submissions [60].

[11] (2012) 248 CLR 378, 389-390 [24]-[25] (French CJ and Hayne J).

[12] (1997) 187 CLR 384 at 408.

[13] Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355 at [69].

Close

Editorial Notes

  • Published Case Name:

    Taske v Commissioner for State Revenue

  • Shortened Case Name:

    Taske v Commissioner for State Revenue

  • MNC:

    [2022] QCAT 416

  • Court:

    QCAT

  • Judge(s):

    Member Richard Oliver

  • Date:

    21 Dec 2022

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Blue Metal Industries Ltd v Dilley (1969) 117 CLR 651
2 citations
Jump To
Cite 1 - (1969) 117 CLR 651
Cite 2 - (1969) 117 CLR 651
Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378
1 citation
Jump To
Cite 1 - (2012) 248 CLR 378
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
1 citation
Jump To
Cite 1 - (1997) 187 CLR 384
Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58
2 citations
Jump To
Cite 1 - [2010] QCATA 58
Cite 2 - [2010] QCATA 58
Project Blue Sky v Australian Broadcasting Authority (1998) 194 C.L.R 355
2 citations
Jump To
Cite 1 - (1998) 194 C.L.R 355
Cite 2 - (1998) 194 C.L.R 355
Wallaby Grip (BAE) Pty Ltd (in liq) v WorkCover Queensland(2022) 12 QR 189; [2022] QCA 204
2 citations
Jump To
Cite 1 - [2022] QCA 204
Cite 2 - [2022] QCA 204

Cases Citing

Case NameFull CitationFrequency
Alexander v Commissioner of State Revenue [2023] QCAT 4092 citations
Ashton v Commissioner of State Revenue [2024] QCAT 3944 citations
Francis v Commissioner of State Revenue [2023] QCAT 4642 citations
Scott-Holland v Commissioner of State Revenue [2023] QCAT 2032 citations
1

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