Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QCAT
  3. 2023
  4. Scott-Holland v Commissioner of State Revenue - [2023] QCAT 203

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Scott-Holland v Commissioner of State Revenue[2023] QCAT 203

Scott-Holland v Commissioner of State Revenue[2023] QCAT 203

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Scott-Holland v Commissioner of State Revenue [2023] QCAT 203

PARTIES:

BRADLEY SCOTT-HOLLAND

(applicant)

V

the COMMISSIONER OF STATE REVENUE

(respondent)

APPLICATION NO/S:

GAR 628-21

MATTER TYPE:

General administrative review matters

DELIVERED ON:

3 May 2023

HEARING DATE:

17 February 2023

HEARD AT:

Brisbane

DECISION OF:

Member Lember

ORDERS:

  1. The decision of the Commissioner of 21 September 2021 is set aside and the application for the home builder grant is returned to the Commissioner for reconsideration on the basis that the applicant has entered into a “comprehensive home building contract” under the home builder direction.
  2. Each party bears their own costs.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – review of decision to refuse payment of Home Builder Grant – where modular home built on rural land not connected to town services – where home owner engaged separate contractors for electrical and plumbing works – where grant requires entry into “a comprehensive building contract” – whether builder undertook to build a home where separate contractors engaged

Acts Interpretation Act 1954 (Qld) s 14A

Building Act 1975 (Qld)

First Home Owner Grant and Other Home Owner Grants Act 2000 (Qld) s 59, s 60, Schedule

Plumbing and Drainage Act 2018 (Qld)

Queensland Building and Construction Commission Act 1991 (Qld) schedule 2

Queensland Building and Construction Commission Regulation 2018 (Qld) schedule 1

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20, s 21, s 24, s 100

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2012) 248 CLR 378

Briginshaw v Briginshaw (1938) 60 CLR 336

Cody v JH Nelson Pty Ltd (1947) 74 CLR 629

Doolan v Queensland Building and Construction Commission [2017] QCAT 58

Grey v Pearson (1857) 6 HLC 61

McCarthy & McCarthy v Commissioner of State Revenue [2022] QCAT 342

O'Neill v The Commissioner of State Revenue [2014] QCAT 482

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

Rezaee and Anor v Queensland Building Services Authority [2011] QCATA 335

Taske v Commissioner of State Revenue [2022] QCAT 416

APPEARANCES &

REPRESENTATION:

Applicant:

Self-represented

Respondent:

G Hartridge, of Counsel instructed by Mr Melvey, OSR

REASONS FOR DECISION

What is the application about?

  1. [1]
    Relevantly, the HomeBuilder Grant (HBG) provided a one-off payment to eligible applicants who built a new home under a contract signed between 4 June 2020 and 31 March 2021.
  2. [2]
    Mr Scott-Holland was refused payment of the HBG by the Commissioner of State Revenue (OSR) and on 21 September 2021 he was unsuccessful in objecting to that refusal (the objection decision).
  1. [3]
    An objection decision is a reviewable decision[1] in respect of which Mr Scott-Holland has applied to the tribunal for review.
  2. [4]
    Upon the review:
    1. (a)
      The tribunal must:
      1. review the circumstances afresh and to produce the correct and preferable decision;[2]
      2. hear and decide the review on the evidence before the OSR when the decision was made, unless it considers it necessary in the interests of justice to allow new evidence;[3]  and
      3. decide the review of the decision in accordance with the same law that applied to the making of the original decision.[4]             
    2. (b)
      The tribunal can confirm or amend the decision, set aside the decision, and substitute its own decision, or set aside the decision and return it to the OSR for reconsideration.[5]
    3. (c)
      The role of OSR, as the original decision maker is to assist the tribunal in making that decision,[6]rather than taking an adversarial role or defending the decision under review.
    4. (d)
      Although not a formal onus of proof, a practical burden falls upon Mr Scott-Holland to satisfy the Tribunal that the relief sought should be granted.[7] 
    5. (e)
      The requisite standard of proof is the balance of probabilities, albeit to the Briginshaw[8] sliding scale, whereby the more serious the consequences, the higher the standard of “reasonable satisfaction” is needed for an application to succeed.
  3. [5]
    Mr and Mrs Scott-Holland appeared at the hearing, as did Ms Hartridge of Counsel, instructed by Mr Melvey of the OSR.
  4. [6]
    The tribunal’s decision and the reasons for it follow. The issue is whether Mr Scott- Holland entered “a contract under which a builder undertook to build a home from the start of building work to the point where the home is ready for occupation”: specifically, whether the engagement of other contractors for certain electrical and plumbing works rendered the transaction ineligible.

Factual background to the decision under review

  1. [7]
    The facts surrounding the making of the grant claim are not disputed and are summarised as follows:
    1. (a)
      Mr Scott-Holland engaged modular-home builder, Oly Homes to supply and install a modular home on land he owned.
    2. (b)
      According to the building contract dated 11 December 2020, at item 5 ‘description of works’ Oly Homes were to supply and install a new Oly ‘Surfside 3’ home for $228,860.00, with the home to be built at an offsite factory then delivered to and installed on the land.
    3. (c)
      Under the terms of the contract the following works were excluded (amongst other things):
      1. 1.
        Connection and supply of water from mains to house including hot and cold pipes under house (water and waste pipes are run internally from fitting through floor only).
      1. 2.
        Final pressure testing of water pipes on connection.
      1. 3.
        Connection of electricity mains and reconnection of junctions where required.
      1. 4.
        Supply and installation/connection of water pipes from floor level.
      1. 5.
        Connection of gas to hot water system and/or oven or cooktop. No gas piping supplied to appliances.
      1. 6.
        Mounting and installation of supplied gas hot water service.
      1. 7.
        Downpipes, water tanks, water pressure pumps and external taps.
      1. 8.
        Mounting and installation of supplied gas hot water service.
      1. 9.
        Installation of ‘point of attachment’ for overhead electrical supply including back stay anchor if required.
      1. 10.
        Connection of electric hot water service, electrical and plumbing.
      1. 11.
        Installation of smoke detectors into supplied cradles, to be completed by homeowner’s electrician.
      1. 12.
        Any items not specifically mentioned in the building contract.
    4. (d)
      Additional terms of the contract included:
      1. In item 3 that ‘amounts payable directly by the owner to a third party’ are omitted from the contract price payable to Oly Homes.
      2. In item 14 (read with clause 5) that Oly Homes was responsible for obtaining building approval for the works (which they did obtain).
      3. In item D that the final payment to Oly Homes was upon “practical completion”.
      4. In Appendix Part I that Mr Scott-Holland is responsible for (including the cost of) the conveying, connection and installation of the services and facilities being brought onto the land and connected to the works.  These services and facilities include, for example, gas, sewerage, storm water, water, electricity, telephone and national broadband.
      5. In clause 10.2 that if the works consist of the erection of a detached dwelling to a stage suitable for occupation, (which they did) Oly Homes warrants that the home will be suitable for occupation when the works are finished.
      6. In clause 29.3 that Oly Homes may subcontract the work but was not relieved in doing so from liability under the contract.
    5. (e)
      Under the Standard Specifications to the contract, Oly Homes was responsible for various steps in the process including:
      1. Site classification test and report;
      2. Building plans and associated engineering certifications;
      3. Standard building and plumbing application approval fees and charges;
      4. Site survey;
      5. QBCC insurances;
      6. Removal of builder’s waste from site; and
      7. Handover clean upon completion.
    6. (f)
      Noosa Electric Co Pty Ltd (Noosa Electric), Mr Scott Holland’s employer, engaged directly by Mr Scott-Holland, undertook electrical work comprising the connection of power to the site pursuant to their invoice dated 19 July 2021. 
    7. (g)
      On 28 July 2021 Oly Homes obtained the From 17 permit for plumbing, drainage, and onsite sewerage work (rough-in and concealed pipework only) to the land.
    8. (h)
      Peter Lorensen Plumbing Pty Ltd (Lorensen), engaged directly by Mr Scott-Holland, undertook the installation of the household sewerage treatment facility as the land was not connected to ‘town water’ described as follows:
      1. Supply and install advanced treatment plant, and
      2. Construct disposal area.
    9. (i)
      Lorensen’s email to Mr Scott-Holland on 12 November 2022 stated that “I don’t do the connection to the house for the septic or the water tanks, this will be included in your builder’s price as part of the plumbing”.
    10. (j)
      Walker Quality Plumbing Pty Ltd (Walker) undertook certain plumbing works, engaged directly by Mr Scott-Holland. According to their quote dated 17 September 2021, their scope of works was to complete suspended drainage under the house, complete the sewer underground from the house to the treatment plant, complete the six downpipes and two overflow pipes from the rainwater tanks, construct the rainwater pump and install and connect water to gas hot water system. The work was invoiced on 29 January 2022.
    11. (k)
      Each of Noosa Electric, Lorensen and Walker liaised with Oly Homes for site access to do their respective works as Oly Homes was in ‘possession’ of the site at the time those works were undertaken.
  2. [8]
    By a letter dated 14 September 2021, Oly Homes say that they undertook:
    1. (a)
      Installation of the home on land owned by Mr Scott-Holland;
    2. (b)
      Plumbing and electrical connections;
    3. (c)
      Smoke alarms; and
    4. (d)
      Internal works to the extent necessary for the home to be occupied.

They also said that they took on responsibility for the completion of all external works, submitted Certificates of Compliance for all works to their certifier who inspected the completed home and issued the Form 21 or Final Certificate on completion.

  1. [9]
    Oly Homes sent an email to Mr Scott-Holland on 25 January 2022 prior to handover stated the following (relevantly):[9]

To get the Final Certificate, the process is summarised as follows:

  1. Final Plumbing Inspection: ETA Feb 2nd (Note. Talk to your plumber and make sure you have everything ready for final inspection, including your gasfitter, power/water onsite etc).
  2. Council to issue Plumbing Certificate…
  3. Certifier issues the Form 21 (Final Certificate):  ETA Feb 10th The certifier will issue the Final Certificate once the Plumbing Certificate is issued.
  1. [10]
    It seems therefore that Oly Homes arranged the final inspections and submissions to Council for final certificates to issue.
  2. [11]
    In an email dated 27 January 2022 Oly Homes said (relevantly):

There are a number of factors that need to come together now, before we can do the Handover and give you the keys to your new home.

Firstly, we need the plumbing works to be inspected by Council and receive the Plumbing Compliance Certificate. We then need to obtain the Final Certificate from the Certifier…

As you are completing some site works, please note this is still deemed an Oly Homes construction site until we hand over the home to you.  So, no unauthorised persons are allowed inside the home as they are not covered by our insurances and any personal items found to be moved inside the home will be deemed that you have taken possession prior to Handover…

  1. [12]
    On 14 February 2022, Council emailed to Mr Scott-Holland the Form 19 Final inspection certificate (plumbing) and Household Treatment Plant letter, which Mr Scott-Holland then sent to Oly Homes.
  2. [13]
    The OSR said in the objection decision that:
    1. (a)
      For a class 1a dwelling to be ready for occupation, electrical works and plumbing works must be completed to the extent necessary for the building to be occupied as a home.
    2. (b)
      The component of electrical wiring, smoke alarms and plumbing supplied by Oly Homes was not connected to the electoral mains, septic system, rainwaters tanks or the gas or electric hot water system.
    3. (c)
      As these connections are critical for a house to be occupied as a place of residence, Oly Homes had not undertaken to build a home from the start of building work to where the home is ready for occupation.
  3. [14]
    The evidence pertaining to Walker and the Form 21 Final Inspection certificate were put before this tribunal by Mr Scott-Holland but were not before the OSR when the objection decision was made. The OSR did not object to the new evidence, considering it relevant to the plumbing works and the completion of the home which are directly relevant to the decision under review.  I am satisfied that the interests of justice necessitate the tribunals’ consideration of this evidence and allow it under section 60(2)(a) of the Grants Act.

What is the legislative framework?

  1. [15]
    Part 3B of the Grants Act deals with HBGs. Division 2 speaks to the entitlement of an applicant to receive the HBG as follows (emphasis added):
  1. 25Q
    Application for grant and when grant is payable
  1. (1)
    A person who is eligible to apply for a home builder grant under the home builder direction may apply for the grant.
  1. (2)
    An application for a home builder grant must comply with the home builder direction.
  1. (3)
    An applicant for a home builder grant is entitled to be paid the grant if—
  1. (a)
    the applicant or, for a joint application, each of the applicants, complies with the eligibility criteria for the grant under the home builder direction; and
  1. (b)
    ) the transaction for which the grant is sought is an eligible home builder transaction; and
  1. (c)
    the relevant requirement in relation to the eligible home builder transaction has been met.

Note—

See also section 25R(2).

  1. [16]
    In section 5(1) of the Grants Act, an ‘eligible transaction’ relevantly includes “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”.
  2. [17]
    In the dictionary contained within the schedule to the Grants Act:
    1. (a)
      ‘comprehensive home building contract’ means 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 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;
    2. (b)
      ‘home builder direction’ means the administrative direction called ‘Australian Government Home Builder Grant - Queensland’ made by the Minister and published on the department’s website; and
    3. (c)
      ‘home builder grant’ means a grant payable under part 3B.
  3. [18]
    The home builder direction current at the relevant time[10] stated (emphasis added):

Background

On 4 June 2020, the Australian Government announced the $25,000 HomeBuilder Grant (the grant), available to eligible owner-occupiers who build a new home or substantially renovate an existing home where the contract is signed between 4 June 2020 and 31 December 2020 (both dates inclusive)…

ADMINISTRATIVE DIRECTION

Eligible transactions

  1. 1.
    Each of the following transactions are eligible transactions for payment of the grant:…
  1. b.
    a comprehensive home building contract made by the freehold owner of land 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 18 months of the contract commencement date…

Licensed builder requirements for eligible transactions

  1. 5.
    If the contract commencement date is before 29 November 2020, a transaction is not an eligible transaction if the building work[11] 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.
  1. 6.
    If the contract commencement date is on or after 29 November 2020, 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 work under the Queensland Building and Construction Commission Act 1991 that was issued prior to 29 November 2020.
  1. 7.
    Also, a transaction is not an eligible transaction if part or all of the building work is to be performed by the applicant, regardless of whether the applicant holds an owner-builder permit under the Queensland Building and Construction Commission Act 1991.
  1. 13.
    Completed or completion means:…
  1. b.
    for a comprehensive home building contract – when the building is ready for occupation as a home and a final inspection certificate under the Building Act 1975 has been issued for the building...
  1. 14.
    A comprehensive home building contract means 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 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. 17.
    A home is a building, fixed to land, that:
  1. a.
    may lawfully be used as a place of residence; and
  1. b.
    is a suitable building for use as a place of residence.

Discussion and findings

The applicant’s submission

  1. [19]
    Put simply, Mr Scott-Holland says that he does not understand how his arrangement with Oly Homes falls outside of the definition of “a comprehensive building contract”.
  2. [20]
    He says that he did have ‘a contract’ with Oly Homes for building work ‘from the start of work (building approval and site works) to the end (certification)’, and that although he arranged electrical and plumbing works that occurred between the ‘start of work’ and the ‘end of work’, this was only because his block was not ‘town land’ with existing connections and the cost of arranging Oly Homes to do so was excessive.  
  3. [21]
    He also says that even though he directly engaged and paid these contractors:
    1. (a)
      Oly Homes and his bank required him to have these contractors’ quotes and arrangements in place as a condition of them entering into the building contract and home loan/mortgage contracts respectively – he says that, on that basis, there was effectively only one transaction for the build; and
    2. (b)
      Oly Homes had control of the land and the building site from when they obtained building approval and first undertook site preparation and piers through to certification, only allowing site access to the electrical and plumbing contractors via arrangement with Oly Homes and arranging certification of those works in additional to their own.
  4. [22]
    He says he did all things asked of him and does not understand how he can be said to have fallen short of the ‘comprehensive building contract’ definition in those circumstances. 

The respondent’s submission

  1. [23]
    The OSR take a narrower view. They say that:
    1. (a)
      The use of the words “a contract” and “a builder” require that the commitment for all work necessary to build the home (namely, a building legally capable of being occupied as a home) must be made by the one builder, under the one contract.
    2. (b)
      Oly Homes was not itself undertaking the connection of the internal electrical work and plumbing to the electrical mains, septic system, rainwater tanks or the gas or electric hot water system.
    3. (c)
      The requirements for external connections to power, water, and sewerage for the lawful use as a place of residence are to be found in the Building Code of Australia (the National Construction Code (NCC) Volumes 1 and 2, of which Volume 2 applies to class 1a dwellings)[12] and Plumbing Code of Australia (the NCC Volume 3).[13]
    4. (d)
      It is the usual practice for a Form 21 Final Inspection certificate issued under sections 98 and 99 of the Building Act 1975 (Qld) to be taken as evidence that the building is suitable for use and lawfully able to be used as a residence.[14]  
    5. (e)
      The issuing of the Form 21 by a building certifier engaged by Oly Homes does not bring all the works undertaken to build the home under the umbrella of the Oly Homes contract.
  2. [24]
    Therefore, the OSR say that:[15]

Not only external plumbing and water supply works were excluded, but also electrical connections, including smoke detectors;

Factory built homes, as in this case, can be within the scope of the terms of the grant, provided that all of the necessary building works to erect and fully complete the home are undertaken by the builder under the terms of the contract. Unfortunately, that is not the case in respect of the Oly Homes contract in issue in this matter.

Discussion and findings

‘A contract’ under which ‘a builder’…

  1. [25]
    In the recent decision in Taske v Commissioner for State Revenue [2022] QCAT 416 Mr and Mrs Taske had entered two contracts for the construction of a new home; one with a builder and one with a tiler for the waterproofing and tiling of wet areas in the home.  The tilling work was expressly excluded from the building contract but done with the builder’s consent because they could not supply the Taske’s tile choice. Both contracts formed part of the Taske’s loan approval.
  2. [26]
    On the question of whether two contracts can together satisfy the Direction, the tribunal said they could not:
  1. [19]
    …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.
  1. [20]
    Furthermore, the definition refers to “a contract”. Although s 32 of the Acts 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. 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.
  1. [27]
    This is the correct position in my view. Nothing in the Grants Act for the HBG contemplates that several contracts, can, together, form one “comprehensive building contract” to meet the definition.

“Undertakes to build…”

  1. [28]
    The OSR say that “undertakes to build” means a commitment to build, but what does “build” mean?   The OSR’s submissions mention “all of the necessary building works to erect and fully complete the home”.[16]
  2. [29]
    Although the definition of “building work” is adopted from the Schedule 2 dictionary to the QBCC Act,[17] the expressions “undertake/s”, and “performed” and “build” are not defined in the Grants Act or in the QBCC Act.  
  3. [30]
    Similar terms are relevantly defined in schedule 2 of the QBCC Act as follows:
    1. (a)
      ‘Undertake to carry out’, for building work, includes entering into a contract, submitting a tender or making an offer to carry out the work.
    2. (b)
      ‘Carry out’ means (for domestic building contracts) any of:
      1. carry out the work personally;
      2. directly or indirectly cause the work to be carried out; or
      3. provide building work services for the work.
    3. (c)
      ‘Building work services’ means one or more of the following for building work;
      1. administration services;
      2. advisory services;
      3. management services; and
      4. supervisory services.
    4. (d)
      ‘Administration services’ includes:
      1. Arranging and conducting on-site meetings and inspections; and
      2. Arranging for certificates, including certificates from a local government to be issued.
    5. (e)
      ‘Management services’ means co-ordinating the schedule of work by building contractors including as agent for another person.
  4. [31]
    Notably, the full definition of a “comprehensive home building contract” means 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 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. 
  5. [32]
    An ordinary reading of this full sentence suggests that the words “carried out” in the latter part are interchangeable with the word “undertake” used earlier.
  6. [33]
    In my view, the definition of “carry out” contained within schedule 2 of the QBCC Act should be adopted. It would (and I suggest has) lead to uncertainty and to absurdity if the definitions related to “building work” in the QBCC Act were not adopted for the purpose of the home builder direction where the definition of “building work” is specifically adopted.
  7. [34]
    Accordingly, I find that “undertake to build” includes making a contractual commitment to carry out building work where ‘building work’ is as defined in the QBCC Act and ‘carry out’ means to carry out the work personally or directly, or to indirectly cause the work to be carried out, or to provide administration, advisory, management or supervisory services for the works.
  8. [35]
    The definition of “building work” in schedule 2 relevantly includes the erection or construction of a building, site work and the preparation of plans or specifications for the performance of building work.
  9. [36]
    Excluded from the definition of “building work” is, relevantly, work for water reticulation systems, sewerage systems or stormwater drains (other than works connecting a particular building to a main of the system or drain)[18] and electrical work under the Electrical Safety Act 2002 (Qld).[19]
  10. [37]
    On that basis, the work undertaken by Noosa Electric and by Sorensen is not building work as defined for the purpose of the home builder direction and, therefore, were not required part of an undertaking “to build”. Put another way, Oly Homes did not fail to “undertake to build” if they failed to agree to do the works that Noosa Homes and Sorensen completed.   
  11. [38]
    If I am wrong about that, I note the following (because Walker’s work does not appear to fall within the QBCCR exclusion of certain plumbing work from the definition of “building work” in any event): 
    1. (a)
      Oly Homes arranged and obtained Council approval for all works that included the plumbing and electrical works as conditions of approval;
    2. (b)
      Oly Homes arranged the final inspections and certificates for all works, although Mr Scott-Holland had a role to play in this by liaising with the contractors for information;
    3. (c)
      Pursuant to the contract, Oly Homes was in possession of the site when works were undertaken and gave limited access to those contractors only for the purposes of those works – since they did not engage those contractors and did not own the land, such access can only have been given by Oly Homes as agent for Mr Scott-Holland; and 
    4. (d)
      In clause 10.2 of their contract with Mr Scott-Holland Oly Homes specifically warranted that upon completion of the building work his home would be suitable for occupying as a dwelling and, according to the final inspection certificates, it was.  They were unable to give this warranty unless they had the requisite level of involvement in, management of and control over all works necessary to obtain those approvals.
  12. [39]
    These obligations of and tasks undertaken by Oly Homes clearly fall within the definition of “administration services” and “management services” and therefore amounted to the carrying out of building work by Oly Homes for Mr Scott-Holland, which they undertook to do.
  13. [40]
    I appreciate that this takes a broader view of the definitions used within the home builder direction than the narrow view proposed by the OSR.
  14. [41]
    I am mindful however, that when interpreting legislation, the following general principles apply:
    1. (a)
      Words should be given their plain and ordinary meaning unless:
      1. a contrary intention is shown: Rezaee and Anor v Queensland Building Services Authority [2011] QCATA 335; or
      2. that would lead to an absurdity.[20]
    2. (b)
      While words should be given their widest and natural meaning, where there is doubt, the context and subject matter of a word may limit its meaning: Cody v JH Nelson Pty Ltd (1947) 74 CLR 629 at 647-8;
    3. (c)
      “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”;[21] and
    4. (d)
      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;[22] and
    5. (e)
      When interpreting a provision, the interpretation that will best achieve the purpose of the Act is to be preferred.[23]
  15. [42]
    The HBG arose out of an agreement between the Commonwealth and the States, referred to as the “National Partnership Agreement on Homebuilder” that recognised the mutual interest of the Commonwealth and the States in supporting the residential construction sector to recover from the COVID-19 crisis.[24]
  16. [43]
    The objectives of the Agreement were 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.[25]
  17. [44]
    The Agreement was to 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.[26]
  18. [45]
    Bearing this context and policy in mind, in interpreting the home builder direction in Taske the tribunal ultimately found that, despite a carve out for tiling and waterproofing, the building contract was a “comprehensive home building contract”, reasoning as follows:
  1. [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.
  1. [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.

…

  1. [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.
  1. [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.
  1. [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).
  1. [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.
  1. [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…
  1. [39]
    … having regard to the factual circumstances as outline above, I find that the contract entered into with Parkside was a comprehensive building contract.
  1. [46]
    Respectfully, I find that adopting the OSR’s narrow interpretation of the home builder direction results in:
    1. (a)
      absurdity, namely, in Mr Scott-Holland’s case, inequitable treatment of owners of land that is not connected to town water and other utilities (namely, of rural/semi-rural land owners); and
    2. (b)
      the unintended exclusion of new home builds from receiving the very grants that were introduced to stimulate the build in the first place, contrary to the purpose and intent of the policy that introduced the grant,

and I do not prefer it to a broader interpretation that is both consistent with what it means to “build” under the QBCC Act and with the context and purpose of the home builder grant as stated. 

“.. a home”

  1. [47]
    The builder must have undertaken to carry out building work for a home. 
  2. [48]
    “Home” is, as defined in the administrative direction, a building, fixed to land, that may lawfully be used as a place of residence and is a suitable building for use as a place of residence.[27]
  3. [49]
    Having regard to my findings at paragraphs [28] to [46] above, Oly Homes “undertook to build” a home even if their role with respect to some electrical and plumbing works (if they were building works) was not one of directly building but rather carrying out building work that extended to administration or management services only. 
  4. [50]
    In clause 10.2 of their contract with Mr Scott-Holland they specifically warranted that upon completion of the building work his home would be suitable for occupying as a dwelling, and took responsibility for obtaining and did obtain the final inspection certificates. 

“from the start of building works to the point of occupation”

  1. [51]
    Oly Homes obtained the original building approval, undertook pier work, and then allowed conditional access to the electrical and plumbing contractors without giving up their contractual possession of the site.  They arranged final inspections and certificates before handover.  There is no question that the Oly Homes contract was a “start to finish” build.

What is the correct and preferable decision?

  1. [52]
    For the reasons set out above, and having considered the matter afresh on the merits, the correct and preferable decision is that Mr Scott-Holland’s contract with Oly Homes satisfies the requirements of a “comprehensive home building contract” under the home builder direction.
  2. [53]
    The decision of the Commissioner of 21 September 2021 is set aside and Mr Scott-Holland’s application is returned to the Commissioner for reconsideration on that basis, noting that there are additional eligibility assessments to be undertaken.
  3. [54]
    There being no application before the tribunal as to costs, section 100 of the QCAT Act is applied and each party is to bear its own costs of the review.

Footnotes

[1]  Section 59, First Home Owner Grant and Other Home Owner Grants Act 2000 (Grants Act).

[2]  Section 20, Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

[3]  Section 60, Grants Act.

[4]  Ibid.

[5]  Section 24, QCAT Act.

[6]  Section 21, ibid.

[7]Doolan v Queensland Building and Construction Commission [2017] QCAT 58 at [13] to [14].

[8]Briginshaw v Briginshaw (1938) 60 CLR 336.

[9]  Exhibit 5.

[10]  Exhibit 1, published 2 July 2021 as in force when the original decision to refuse the grant was made on 30 July 2021; McCarthy & McCarthy v Commissioner of State Revenue [2022] QCAT 342.

[11]  The definition of ‘building work’ in schedule 2 of the Queensland Building and Construction Commission Act 1991 is adopted for the purposes of the administrative direction.

[12]Building Act 1975 (Qld).

[13]Plumbing and Drainage Act 2018 (Qld).

[14]O'Neill v The Commissioner of State Revenue [2014] QCAT 482 at [42].

[15]  Respondent’s Reply Submissions filed 5 August 2022, paragraphs 17-18.

[16]  Ibid.

[17]  Footnote 1 of the home builder direction.

[18]  Regulation 11, Schedule 1, Queensland Building and Construction Commission Regulation 2018 (Qld) (QBCCR).

[19]  Regulation 20, Schedule 1, QBCCR

[20]Grey v Pearson (1857) 6 HLC 61 at 106.

[21]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2012) 248 CLR 378, 389-390 [24]-[25] (French CJ and Hayne J).

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

[23]  Section 14A, Acts Interpretation Act 1954 (Qld).

[24]  Paragraph 4 of the National Partnership Agreement.

[25]  Paragraph 15, ibid.

[26]  Paragraph 16, ibid.

[27]  Paragraph 7 of the home builder direction.

Close

Editorial Notes

  • Published Case Name:

    Scott-Holland v Commissioner of State Revenue

  • Shortened Case Name:

    Scott-Holland v Commissioner of State Revenue

  • MNC:

    [2023] QCAT 203

  • Court:

    QCAT

  • Judge(s):

    Member Lember

  • Date:

    03 May 2023

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
Briginshaw v Briginshaw (1938) 60 C.L.R 336
2 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378
2 citations
Jump To
Cite 1 - (2012) 248 CLR 378
Cite 2 - (2012) 248 CLR 378
Cody v J H Nelson Pty Ltd (1947) 74 CLR 629
2 citations
Jump To
Cite 1 - (1947) 74 CLR 629
Cite 2 - (1947) 74 CLR 629
Doolan v Queensland Building and Construction Commission [2017] QCAT 58
2 citations
Jump To
Cite 1 - [2017] QCAT 58
Cite 2 - [2017] QCAT 58
Lord Wensleydale in Grey v Pearson (1857) 6 HLC 61
2 citations
Jump To
Cite 1 - (1857) 6 HLC 61
Cite 2 - (1857) 6 HLC 61
McCarthy & McCarthy v Commissioner of State Revenue [2022] QCAT 342
2 citations
Jump To
Cite 1 - [2022] QCAT 342
Cite 2 - [2022] QCAT 342
O'Neill v Commissioner of State Revenue [2014] QCAT 482
2 citations
Jump To
Cite 1 - [2014] QCAT 482
Cite 2 - [2014] QCAT 482
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
Rezaee and Anor v Queensland Building Services Authority [2011] QCATA 335
2 citations
Jump To
Cite 1 - [2011] QCATA 335
Cite 2 - [2011] QCATA 335
Taske v Commissioner for State Revenue [2022] QCAT 416
2 citations
Jump To
Cite 1 - [2022] QCAT 416
Cite 2 - [2022] QCAT 416

Cases Citing

Case NameFull CitationFrequency
Ashton v Commissioner of State Revenue [2024] QCAT 3942 citations
Conomos v Commissioner of State Revenue [2024] QCAT 3722 citations
1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.