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Winkworth v Commissioner of State Revenue[2023] QCAT 282

Winkworth v Commissioner of State Revenue[2023] QCAT 282

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Winkworth v Commissioner of State Revenue [2023] QCAT 282

PARTIES:

Scott winkworth

(applicant)

v

the commissioner of state revenue

(respondent)

APPLICATION NO/S:

GAR507-21

MATTER TYPE:

General administrative review matters

DELIVERED ON:

28 July 2023

HEARING DATE:

20 April 2023 with written submissions filed 7 July 2023

HEARD AT:

Cairns

DECISION OF:

Member McNamara

ORDERS:

  1. The appeal is allowed.
  2. The grant should be paid to Mr Winkworth and Ms Fewtrell.

CATCHWORDS:

GENERAL ADMINISTRATIVE REVIEW – FIRST HOME OWNER GRANT – Appeal of decision of Commissioner of State Revenue to affirm original decision to refuse the applicant the HomeBuilder Grant – where application for grant denied on the basis that the transaction for which the grant was sought was not an eligible home builder transaction because the construction commencement date was earlier than the contract commencement date – where respondent refused grant because application did not comply with Administrative Direction – where the applicant claims the work done before the contract date did not amount to ‘site preparation works’ – where the respondent contends that the work done before contract commencement date amounts to ‘site preparation works’ – whether new grounds of appeal in QCAT application were limited to grounds of objection – where Tribunal allowed  new evidence of audio recording produced by the respondent in the interests of justice pursuant to s 60 of the First Home Owner Grant and Other Home Owner Grants Act 2000 – where Tribunal allowed new evidence of statutory declarations produced by the applicant in the interests of justice pursuant to s 60 of the First Home Owner Grant and Other Home Owner Grants Act 2000 – where appeal allowed

First Home Owner Grant and Other Home Owner Grants Act 2000 (Qld) ss 25Q, 60

Queensland Civil and Administrative and Tribunal Act 2009 (Qld)

Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 QdR 404

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

APPEARANCES & REPRESENTATION:

 

Applicant:

P Bhela, Impact Legal Solutions

Respondent:

C Chiang, instructed by the Queensland Revenue Office

REASONS FOR DECISION

  1. [1]
    Scott Winkworth has applied to the Queensland Civil and Administrative Tribunal (QCAT) for review of the decision of the Commissioner of State Revenue (CSR) to refuse payment of the HomeBuilder Grant (the Grant) to him and his partner Tahnee Fewtrell.  The basis of the refusal was that the transaction for which the grant was sought was not an eligible home builder transaction because the construction commencement date was earlier than the contract commencement date.
  2. [2]
    For the reasons that follow the CSR was wrong to refuse payment of the grant.

Background

  1. [3]
    On 17 November 2020, Mr Winkworth and Ms Fewtrell lodged a HomeBuilder grant application with the CSR. This was some months after work on their new home had begun.  The property at Lot 1008 on SP313372 was on a new estate. 
  2. [4]
    After a considerable amount of ‘back and forth’ between Mr Winkworth and officers of the CSR, which is described later in these reasons, Mr Winkworth was advised by telephone and by email letter on 9 June 2021 that his application had been refused because paragraph 1.b of the Administrative Direction had not been satisfied.
  3. [5]
    The First Home Owner Grant and Other Home Owner Grants Act 2000 (FHOG Act) s 25Q(2) requires that an application for a home builder grant must comply with the home builder direction. The home builder direction is defined in the FHOG Act as the Administrative Direction published on the department’s website.  
  4. [6]
    To be an eligible transaction under Paragraph 1.b, amongst other things, the construction commencement date must be on or after the contract commencement date.  The CSR considered the construction commencement date to be 31 July 2020, and the contract commencement date to be 5 August 2020.
  5. [7]
    Mr Winkworth lodged an objection to that decision with the CSR on 10 June 2021, in effect, asserting that the construction commencement date post-dated the contract commencement date as no foundation works had occurred until after the contract commencement date.  
  6. [8]
    The objection was referred to the Review and Dispute Resolution Division of the Office of State Revenue.  A Senior Review Officer for the CSR advised Mr Winkworth and Ms Fewtrell by letter dated 25 June 2021 that the decision to refuse payment of the grant was confirmed. Attached to the letter was a Notice of decision and statement of reasons.
  7. [9]
    In the 25 June 2021 statement of reasons, Mr Winkworth was informed that he may apply for review of the decision to QCAT, but that unless otherwise ordered by QCAT, the grounds of application for review are limited to the grounds of objection. 
  8. [10]
    On 20 August 2021, Mr Winkworth lodged an application for review of the decision of the CSR with QCAT.
  9. [11]
    Throughout these reasons I will refer to either ‘the applicant’ or ‘Mr Winkworth’ depending on the context.  The acronyms OSR (Office of State Revenue) and CSR (Commissioner of State Revenue) are used interchangeably but are consistently a reference to the respondent.

Grounds of objection

  1. [12]
    The 25 June 2021 statement of reasons addressed the following grounds of objection:
    1. (a)
      that the only work that took place on 31 July 2020 (before the contract date) was clearing of the land;
    2. (b)
      no foundation components (footings) commenced until 31 August 2020 (after the contract commencement date);
    3. (c)
      advice to Mr Winkworth from an accountant and mortgage broker ‘(that Mr Winkworth) would be eligible’;
    4. (d)
      that Mr Winkworth had met eligibility criteria for other grants.
  2. [13]
    The CSR had regard to the following material findings of fact:
    1. (a)
      A “To Whom it May Concern” letter dated 17 November 2020 from the builder McIvor Pty Ltd which said they started commencement of the building … on 31 July 2020 with excavation and site works;
    2. (b)
      A “To Whom it May Concern” letter dated 9 June 2021 from the builder McIvor Pty Ltd which said that, ‘footings were not excavated until 31 August 2020 … but that grass was cleared off the block on 31 July 2020 ... as machinery was close by…(and there was a) trusting relationship…which enabled the builder to proceed with excavating at the same time…(which) saved both time and money’; and
    3. (c)
      The 9 June 2021 telephone conversation between CSR officer Liam Scanlan and Mr Winkworth which confirmed that works occurred on 31 July 2020, ‘not just clearing land but also excavation and site preparation works… because contract talks were advanced by that stage and the builder was nearby to the land.’
  3. [14]
    The Senior Review Officer confirmed the decision that the “construction commencement date” was 31 July 2020 which pre-dated the “contract commencement date” and payment of the grant was refused. 

The application for review

  1. [15]
    The FHOG Act, specifically s 60(2), provides that: … QCAT must hear and decide the review of the decision by way of a reconsideration of the evidence before the commissioner when the decision was made, unless QCAT considers it necessary in the interests of justice to allow new evidence; and decide the review of the decision in accordance with the same law that applied to the making of the original decision.  Section 60(3)[1] provides that the grounds for review are limited to the grounds of objection unless the Tribunal otherwise orders.
  2. [16]
    The grounds for review are found in Annexure A to the QCAT application.  Annexure A is comprised of 18 numbered paragraphs, which was accompanied by the Statutory Declaration of the house builder Reginald James Moore, sole Director of McIvor Pty Ltd, signed and dated 20 August 2021, and the Statutory Declaration of Mr Winkworth signed and dated 20 August 2021.
  3. [17]
    QCAT directions made 24 October 2022 required, amongst other things, the CSR to file the Administrative Direction published 25 May 2022 (the updated direction), and directed that the application for leave to rely upon fresh evidence will be heard and determined at the commencement of the hearing.  It was further directed that subject to leave being given, no party would be allowed to present any evidence at the hearing that was not contained in statements or material already filed with QCAT.  
  4. [18]
    In the CSR’s further written submissions dated 7 November 2022, they address the Administrative Direction published 25 May 2022 (the updated direction) and the applicant’s oral submissions at the QCAT directions hearing, that the updated direction is the applicable law, and if that is accepted the submission that the updated direction would support a finding that the Applicant entered into an eligible transaction.

The hearing

  1. [19]
    The preliminary issues identified by the CSR in their 28 October 2021 written submissions (Exhibit 3) are:
    1. (a)
      whether the application seeks review on grounds outside grounds set out in the 10 June 2021 objection; and
    2. (b)
      if so whether QCAT will permit additional grounds to be raised in the review;
    3. (c)
      whether it is necessary in the interests of justice to allow new evidence to be received, being the statutory declarations of the builder, Mr Moore, and Mr Winkworth.
  2. [20]
    The matter was heard in Cairns on 20 April 2023.
  3. [21]
    The documents listed by the CSR 1 to 8 in their material to be read provided by email on 19 April 2023, were accepted into evidence as Exhibits 1 to 8 inclusive.
  4. [22]
    The CSR also sought to introduce new evidence in the form of an audio recording of the telephone conversation referred to at paragraph [13(c)] above. 
  5. [23]
    The CSR submitted that the audio recording corroborates a contemporaneous file note which is included in their documents provided to the tribunal at Exhibit 2 folio 64. 
  6. [24]
    The applicant welcomed the introduction into evidence of the audio recording, expressing the view that “it paints a picture of the miscommunication …”[2]  I accepted the audio recording into evidence.

The grounds of objection v the grounds for review

  1. [25]
    The grounds of objection are found in Part D of the 10 June 2021 Objection – Form OSR-GEN1 which is included in Exhibit 2 at folio 50-53.
  2. [26]
    The grounds for review are found in Annexure A to the QCAT application.
  3. [27]
    CSR identify the grounds for objection in their preliminary written submissions at [17] as follows:

“… the only work that was taken place [sic] on 31/07/2020 was clearing of the land which by definition is “commencement of construction” hence why this was the date we provided for the application. However, no foundation components or elements (footings) commenced until 31/08/2020 which occurred after the contract was signed on 05/08/2020…”

  1. [28]
    CSR note in submissions the photographic and video evidence submitted by Mr Winkworth to demonstrate that “the land was only cleared and no works had started.”  In its preliminary written submissions,[3] the CSR say that the photograph (which was attached to Mr Winkworth’s objection) shows a flat site of soil without any grass and submit that: “On the plain and ordinary meaning of the words ‘site preparation works,’ it is clear that clearing the site of vegetation falls within that definition, that being usually the first step in preparing a block of residential vacant land for construction.”
  2. [29]
    The applicant also submitted as grounds that the decision of the CSR was unreasonable because they (Mr Winkworth and Ms Fewtrell) had met the eligibility criteria for other grants, and that they had been led to believe they would be eligible by their accountant and mortgage broker. Neither of these grounds were argued in the hearing. I do not consider either of them to be valid grounds of objection nor relevant to my consideration of the application and I do not propose to discuss them further in these reasons.
  3. [30]
    CSR argue however that the grounds were expanded in the application made to the Tribunal.  They identify the following new matters raised in the application:[4]
    1. (a)
      The OSR officer misconstrued the actions of the Builder to be part of the Applicant’s construction;
    2. (b)
      On 31 July 2020, the Builder attended to clearing the Property without direct permission from any future land owners or the Seller;
    3. (c)
      The lot was cleared in good faith that future development of the site would take place and was attended to for the Builder’s own convenience as the machinery was within the street;
    4. (d)
      The applicant did not instruct, nor was he aware that the Builder had cleared the Property until after settlement on 25 August 2020;
    5. (e)
      The actions of the Builder on 31 July 2020 should not be considered to be associated with the Applicant or the Applicant’s construction, specifically the “construction commencement date”; and
    6. (f)
      The Applicant had no authority to make any decisions about the Property until 25 August 2020, after the Property settlement; therefore any works on the Property prior to 25 August 2020 were between the Seller and the Builder.
  4. [31]
    CSR reframe these as contentions that the CSR officer/s misconstrued the actions of the builder and that there were miscommunications involving the CSR officer and Mr Winkworth.
  5. [32]
    In my view the matters (a) to (f) above are not new grounds of appeal.  I do not accept that an assertion that there was a misunderstanding or miscommunication regarding the state of affairs is a new ground of objection.  The misunderstandings and miscommunications asserted are not the critique of one party, they are mutual. The CSR officers placed considerable weight on written correspondence that would benefit from context including its generation, and considerable weight on the file note of a telephone conversation that might, or might not, be open to interpretation.  Fundamentally the ground of objection remains the same, that is that contrary to conclusion reached at first instance and on review, the work undertaken on 31 July 2020 did not amount to the commencement of construction. What or why it is asserted certain answers were given and things were said or written will however influence credibility, weight and probative value.

New evidence – merits review

  1. [33]
    As noted already section 60(2) provides: QCAT must (a) hear and decide the review of the decision by way of a reconsideration of the evidence before the commissioner when the decision was made, unless QCAT considers it necessary in the interests of justice to allow new evidence; and (b) decide the review on which the application for review is made are limited to the grounds of the relevant objection unless QCAT otherwise orders.
  2. [34]
    Having concluded that I do not consider there to be new grounds of objection raised in the review I will now turn to consider whether it is in the interests of justice to allow new evidence, being the 20 August 2021 Statutory Declarations of the builder Mr Moore, and the applicant Mr Winkworth.

What criteria applies to the consideration of necessity in the interests of justice? 

  1. [35]
    The respondent says in Preliminary submissions at [48] that new evidence will ordinarily only be allowed if:
    1. (a)
      it could not have been obtained with reasonable diligence at the time of trial;
    2. (b)
      had the evidence been given, it would have had an important influence on the result (although it need not be decisive); and
    3. (c)
      the evidence is apparently credible, although not necessarily incontrovertible. [Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 QdR 404 at 408.] 

What is the new evidence?

  1. [36]
    The “new evidence” is the statutory declarations of Mr Winkworth and Mr Moore (builder) sworn 20 August 2021.   
  2. [37]
    The Winkworth statutory declaration states that he did not know the grass was cleared until 25 August 2020 when he attended the property after settlement; that he never provided instructions to the builder or gave consent to clear the grass; and when he spoke to the OSR officer he was not sure what the “commencement date” was; and he did not understand that the builder clearing the grass was not associated with his construction commencement date.
  3. [38]
    In Submissions on the Applicant’s New Evidence and in Written Closing Submissions the respondent says the content of Mr Winkworth’s statutory declaration directly contradicts many of his prior written and verbal statements to the Commissioner.
  4. [39]
    The Moore statutory declaration states: “We attended to clearing Lot 1008 on or abouts 31 July 2020, with the implied good faith relationship with the Developer (and current landowner at the time). This was for our own convenience as we had the machinery on site for other lots and as done in the past within the street for the neighbouring lots,” and “The clearing of Lot 1008, is in no way whatsoever associated with the construction commencement date or the construction contract of Scott Winkworth and Tahnee Fewtrell. No instructions or consents were sought from Scott Winkworth and Tahnee Fewtrell in relation to us clearing the grass as this had no association to them.”
  5. [40]
    The statutory declarations describe the work done on 31 July 2020 as “clearing the grass” and that the work was not undertaken on instructions from Mr Winkworth.
  6. [41]
    Addressing the question of admissibility at the hearing and the effect of the respondent’s closing submissions, CSR says that a different interpretation on the builder’s actions does not mean the evidence was not reasonably available; that the statutory declaration contradicts prior evidence and is of little probative value; and if admitted, it should be given no weight because it deviates from previous evidence after receiving the respondents reasons for refusal, and it is therefore not credible.
  7. [42]
    Fundamentally, the new evidence concerns the understanding Mr Winkworth had regarding the key terms and events which are relevant to his Home Builder Grant application, and what is to be made of the sometimes contradictory statements contained in the “To Whom it May Concern” letters from Mr Moore’s business, McIvor Pty Ltd.
  8. [43]
    At the hearing I formed the view that I would be best placed to determine admissibility if the deponents of both Statutory Declarations were called to give evidence and were available for cross examination.
  9. [44]
    Before turning to the evidence given by Mr Winkworth and Mr Moore at the hearing (and the admissibility of that evidence) I will outline the relevant background evidence concerning the communication between Mr Winkworth and CSR, and the evidence concerning the meaning of “commencement of construction”.

Material between Mr Winkworth and CSR regarding the “construction commencement date” and the “contract commencement date” 

  1. [45]
    The documents included in Exhibit 2 folio 64-77 are pertinent.
  2. [46]
    Email correspondence 9 February 2021 from “HomeBuilderGrant@treasury” addressed to Mr Winkworth asked for “Evidence of construction commencement (ie statement from the builder, commencement notice).” 
  3. [47]
    Mr Winkworth responded on 10 February 2021 saying “For the commencement notice, I have attached form 16 which is the certificate to say the slab has gone down. Is that enough?”
  4. [48]
    The response on 18 February 2021 says: “Thank you for the documents. Yes the form 16 is great.”
  5. [49]
    Despite that, on 22 February 2021 “HomeBuilderGrant@treasury” emailed Mr Winkworth to say: “The only document I am now looking for is the commencement notification. Can you email that across please. If you do not have one you should be able to get that from the builder. It would have been raised by them prior to the form 16 regarding the foundations.” 
  6. [50]
    The words “commencement notification” in the email were in bold typeface, which might suggest that the “commencement notification” might be a particular OSR form, or it is a defined term.  The email suggests that it is a necessary document that a builder completes, that is: “It would have been raised by them prior to the form 16…”
  7. [51]
    The document provided by Mr Winkworth in reply was the 17 November 2020 “To Whom it May Concern” letter from the builder saying the dwelling “started commencement on the 31/07/20 with excavation and site preparation.”
  8. [52]
    The HomeBuilderGrant officer replied on 24 February 2021 saying that the date must be incorrect adding: “How can work commence before you signed the contract?”
  9. [53]
    Mr Winkworth replied on 24 February 2021 saying: “… All they did on the date stated was clear the land. …”    He added that the foundations didn’t get started until after the contract was signed.
  10. [54]
    On 7 May 2021, some 10 weeks later, HomeBuilderGrant emailed Mr Winkworth asking for confirmation from the builder “of all works that were undertaken … on 31 July 2020. … and the date on which the builder commenced excavation works (if not 31 July 2020).”
  11. [55]
    On 3 June 2021 Mr Winkworth emailed HomeBuilderGrant to apologise for not replying earlier and advised that he had forwarded the email to the builder.
  12. [56]
    On 7 June 2021 Mr Winkworth forwarded to HomeBuilderGrant a “To Whom it May Concern” letter dated that same day, 7 June 2021, which is in identical terms to the 17 November 2020 “To Whom it May Concern” letter - which had initiated the question from HomeBuilderGrant.  The only apparent difference between the two letters is the signature.  The 7 June 2021 letter is clearly signed “S. Moore”, whereas the signature on the 17 November 2020 letter is indecipherable.
  13. [57]
    What followed was the 9 June 2021 10.04am telephone conversation between Mr Winkworth and OSR officer Liam Scanlan referred to at [13(c)] above.  Mr Scanlan again phoned Mr Winkworth about an hour later to inform him that his application would be declined.  Forty-five minutes later a letter from CSR was emailed to Mr Winkworth advising that the 17 November 2020 letter from McIvor Pty Ltd (builder) stated that excavation and site preparation works commenced on 31 July 2020 which pre-dated the 5 August 2020 contract commencement date and based on that information the “transaction was not an eligible transaction for the Grant”.
  14. [58]
    The next day, 10 June 2021, Mr Winkworth lodged his objection and attached another (the third) “To Whom it May Concern” letter from the builder, McIvor Pty Ltd, this one dated 9 June 2021.  This letter apparently signed by S Moore says that footings were not excavated until after the contract was signed; the grass was cleared off the block on 31/07/2020; but then says: “This was due to circumstances of McIvor P/L had machinery benching multiple sites on Laguna Ave and a trusting relationship with the said client enabled us to proceed with the excavating at the same time. This was a savings for us and the client with time and money.” 

The meaning of the “commencement of construction”

  1. [59]
    The ‘Guide to completing the HomeBuilder grant application form’ (Exhibit 2 folio 99-101) outlines the meaning of terms. The meaning of “commencement of construction” in relation to a new home or an off-the-plan home means “the commencement of excavation and site preparation work”.
  2. [60]
    The Queensland Revenue Office website regarding the Home Builder Grant scheme defines “Excavation and site preparation” to include:
    1. (a)
      clearing (e.g. vegetation, existing structures)
    2. (b)
      rehabilitation of land to comply with environmental regulations
    3. (c)
      excavation or removal of rock and soil
    4. (d)
      site cut and fill.

The date excavation and site preparation commenced for building a home is the date this work starts for the build.

  1. [61]
    There is some inconsistency as to the meaning of “clearing” from the CSR. As will be discussed shortly, CSR Officer Liam Scanlan said to Mr Winkworth on 9 June 2021 that clearing of trees is probably not considered construction commencement - and by extrapolation not within the meaning of ‘excavation and site preparation’. 
  2. [62]
    Counsel for CSR, however, in the hearing submitted that the ‘removal of grass’ would constitute clearing - and by extrapolation tree clearing would be within the meaning of ‘excavation and site preparation’.[5] In closing submissions, at [66], the respondent submits that the tribunal should conclude that at the very least the Builder cleared the land at (the Property) using machinery, and that this action constitutes both site preparation and excavation.  
  3. [63]
    As I note later in these reasons, Mr Winkworth never asserted that tree clearing had occurred.  He only ever asserted that “… all they did … was clear the land” and that the “clearing” did not amount to footings or foundation works.  There is no evidence that there was any vegetation other than grass and weeds on the site in July 2020.  There is no evidence of any existing structures which required demolition on Lot 1008 in July 2020. There is evidence that there was rubbish that had been deposited on the site by builders with the permission of the developer.  It is not, however, contended by the respondent that the removal of the builders rubbish constituted excavation and site preparation. 
  4. [64]
    The evidence, including the video evidence, strongly suggests that Lot 1008 was one of many vacant housing blocks on a new housing estate.  The video evidence suggests that estate headworks had been completed on the estate and in that process trees and any existing structures were cleared by the developer prior to Mr Winkworth entering into a contract to purchase Lot 1008. Any vegetation on Lot 1008 would most likely be seeded grass and regrowth.
  5. [65]
    There is no suggestion and no evidence that rehabilitation to comply with environmental regulations occurred on the site on 31 July 2020. 
  6. [66]
    There is no evidence that rocks or soil were removed from Lot 1008 by Mr Moore. 
  7. [67]
    There was no challenge to the assertion from Mr Winkworth that foundations or footings were not laid on 31 July 2020.
  8. [68]
    It is not apparent from the photograph and video attached to the 10 June 2021 objection application that was before the Senior Review Officer that there were any structures that had been placed on the land in the nature of any built form, footings, trenches, foundations, framing, or diggings.  
  9. [69]
    The only evidence that would suggest that excavation had occurred was contained in the first two “To Whom it May Concern” letters, and the file note of the 9 June 2021 conversation prepared by CSR officer Liam Scanlan that reads: “He confirmed that it wasn’t just tree clearing that occurred on 31 July 2020, the excavation did in fact commence on the same date….”.  The audio recording of the conversation on this point I will discuss shortly.
  10. [70]
    The nature or description of the ‘excavation (that) did in fact commence’, other than the clearing of grass, was not recorded. 
  11. [71]
    While the Senior Review Officer had before her the file note of the 9 June 2021 conversation, it appears that the Senior Review Officer did not have the audio file.
  12. [72]
    The file note is not a contemporaneous account of the conversation.  It is a synthesised version of a conversation.  The audio file was produced at the hearing and will be discussed next.  Briefly though, the file note in my view was apt to mislead the Senior Review Officer concerning the nature of vegetation on Lot 1008.
  13. [73]
    Tellingly, it is noted that towards the end of the telephone conversation Mr Winkworth asked “… if that meant the grant was approved.”  This was despite, Mr Winkworth’s apparent concurrence with the suggestion that tree clearing and excavation had occurred, which was entirely against his interests and would deny him eligibility for the grant. 

The audio recording

  1. [74]
    After much discussion in the hearing about the 9 June 2021 phone call, counsel for CSR said: “… I submit that if the phone call is allowed into evidence that the substance – the content of the phone recording will demonstrate that the parties specifically discussed this point about construction commencement date and the implications of grass clearing …”[6]
  2. [75]
    Officer Liam Scanlan is no longer a CSR employee and was unavailable to appear at the hearing, and therefore not available for cross examination. The decision under review is, of course, the decision of the Senior Review Officer, not Mr Scanlan, and as noted, the Senior Review Officer had before her the file note but not the audio recording.
  3. [76]
    The audio recording was played in the court room.  Key passages are transcribed here:

Scanlan: “…clearing of trees is probably not considered construction commencement … did they start the set out and actual excavation from that date …”

Winkworth: “… from that date yeah ..”

Scanlan: “My interpretation was that they cleared the trees and then moved on … But if they actually started digging into the ground and things like that …

Winkworth: “Yeah”

Scanlan: “then I don’t need anything further”

  1. [77]
    The file note does not include the comment by Liam Scanlan that clearing of trees “is probably not considered construction commencement”, however it had not been asserted by Mr Winkworth that trees had in fact been cleared from the site and there is no evidence that there were trees on the site, or any ‘existing structures’ for that matter.  Lot 1008, like the Lot to the left of it and the Lot directly across the road from it as seen in the video was relatively flat, treeless, vacant land within a new housing estate. 
  2. [78]
    Mr Winkworth’s 24 February 2021 email to CSR referred to at [53] above only says “… All they did on the date stated was clear the land…”  As will be discussed further below, we know from Mr Moore’s evidence at the hearing that he did clear the land of rubbish that had been deposited on Lot 1008 and in the process removed weeds and some grass.  There are however the statements in the “To Whom it May Concern” letters regarding “excavation and site preparation” that require consideration and I will turn to that after considering Mr Winkworth’s evidence at the hearing.
  3. [79]
    I note that in response to the question from Liam Scanlan: “… did they start the set out and actual excavation from that date,” Mr Winkworth responded, “from that date yeah.”  He did not respond “on that date.”

The evidence of Mr Winkworth, the photograph, the audio, and the video

  1. [80]
    As I said at [43], early in the hearing I formed and expressed the view that I would be best placed to determine admissibility of the Statutory Declarations if the deponents were called to give evidence and were available for cross examination.
  2. [81]
    I outlined the content of Mr Winkworth’s statutory declaration at [37] above. In addition to that he said that in answer to a question about the commencement date: “The grass was cleared on 31 July 2020,” although he was “not certain or sure what the commencement date actually was.”  He said that as the matter had been ongoing for months “I just said “yes” to the officer.”
  3. [82]
    At the time he swore his statutory declaration (20 August 2021) Mr Winkworth did not have access to and therefore had not listened to the audio recording, however the recording confirms my understanding that Mr Winkworth believed, and he only ever stated in any positive sense that grass was cleared on 31 July 2020, and not, for example, tree removal. 
  4. [83]
    The statutory declaration also raises the question as to whether Mr Winkworth’s single word answers of “yes” or “yeah” were gratuitous concurrence, that is, where a person appears to agree to a sequence of proposition put to them – where it might not be clear that they are in fact agreeing with the proposition. In his evidence he said that by agreeing and saying yes, he thought that he “was helping my cause and I thought Liam was – and – and just trying to sort it out because it had been going on for so long…”[7]
  5. [84]
    In relation to the passage in the audio recording where Liam Scanlan referenced “digging into the ground” and Mr Winkworth answered “yeah”, he was asked in cross examination if he thought that that would mean he would get his grant. He said “yes. I thought it was helping…”  He was asked by Counsel for CSR: “But, in fact, you now say the builders did not start digging into the ground at that time? … No, they just cleared the grass on that – on that date.”[8]  He agreed that in answering Liam Scanlan’s question (about digging into the ground) he did not actually know that that occurred.[9]
  6. [85]
    When asked by me what he meant when he indicated that he answered untruthfully, Mr Winkworth said “I know fishing gear, I know rugby, I don’t know anything to do with contracts – and what they were asking.”[10]
  7. [86]
    Mr Winkworth was shown the photograph which he said showed his niece standing at the front of Lot 1008 with her hand on the “sold, Lot 1008” sign on the settlement day, 28 August 2020.[11] He said that he had not seen or visited the land between the date he signed the contract to buy 14 July 2020, and the settlement date, 28 August 2020. He was not asked to comment on the photograph.
  8. [87]
    He said that he only knew about the grass clearing when he went to visit the site after settlement on 28 August 2020 and saw that grass had been cleared.  He said he spoke to the builder some days later and the builder advised him that they had cleared the grass a few weeks earlier.
  9. [88]
    Mr Winkworth was asked about statements he made in correspondence with CSR, in particular his email of 24 February 2021.  In an attempt to explain why some activity had been carried out on the land before the contract commencement date, he said that “we were in talks with our builders long before we signed our contract so they knew we were going to build,” and the builders “were clearing the land on those (other blocks on the street) they did it for our block.” This is the work done on 31 July 2020. 
  10. [89]
    His explanation for the content of the 24 February 2021 email was, he said, his attempt to reconstruct events, after becoming aware following settlement that grass had been removed from the Lot.  That is, his account was based on his post-settlement conversation with the builder. He said he assumed that three blocks in a row were cleared at the same time, and he assumed that they used machinery because it is not something they were likely to do using a shovel. 
  11. [90]
    This 24 February 2021 explanation was given 7 months after the relevant date (31 July 2020), and based on the evidence of Mr Winkworth, 6 months after he became aware that the builder had cleared some grass off the block.
  12. [91]
    The video which had been attached to the 10 June 2021 objection was played in court.  It was a short film taken from the front of Lot 1008.  The vision swept from the left of Lot 1008, across Lot 1008 and showing the boundary of the Lot directly to the right, and then sweeping around to the Lot directly opposite the subject Lot 1008.
  13. [92]
    The video showed a vacant 400m2 Lot to the left, Mr Winkworth’s 600m2 Lot 1008  behind the “sold” sign, and to the right the third Lot where established footings could be seen. When the camera spun to the other side of the road a similar vacant Lot could be seen. The video shows a new housing estate with vacant Lots of a similar topography, no trees or vegetation other than grass and weeds, some completed houses, and as mentioned, the neighbouring block where footings had been placed.  It appeared from the video, and Mr Winkworth stated in response to questions from Counsel for the respondent that the estate “was not perfectly flat,” and that some Lots “jump up a little bit” because “you can’t have a perfectly flat estate.” He said that this elevation differential or “height difference” between Lots occurred “when the land was developed.”[12] 

The evidence of Mr Moore, the “To Whom it May Concern” letters, and the video

  1. [93]
    Mr Moore is a builder and the sole director of McIvor Pty Ltd.
  2. [94]
    There were three “To Whom it May Concern” letters on McIvor Pty Ltd letterhead in evidence. The 17 November 2020 and 7 June 2021 letters are in identical terms but for the date and the signature.  All three have the same signature block: Reg and Susan Moore. The third letter dated 9 June 2021 contains different content but the same signature as the 7 June 2021 which appears to be “S Moore”.
  3. [95]
    Mr Moore was shown the 17 November 2020 letter but was unsure if the signature on it was his.  He thought it might be his wife Susan’s signature. Susan Moore does administrative work for the business.   He thought that his wife probably prepared the letter because she “does all the office work.”  The letter stated: “Commencement started on the 31st July 2020 with excavation and site preparation.” Mr Moore could not recall writing the letter. He thought it could have been prepared from a diary entry.
  4. [96]
    When shown the third letter dated 9 June 2021 he said “probably my wife prepared that” noting that it was signed by Susan Moore.[13] Again, his evidence was that the content of the letter was drawn from his diary or possibly a telephone call.  This letter was different from the others as it contained a paragraph:

This was due to circumstances of McIvor PL had machinery benching multiple sites on Laguna Ave, and the trusting relationship with the said client enabled us to proceed with the excavating at the same time. This was a savings for us and the client with time and money.

  1. [97]
    Mr Moore said that he did not write this, and it was not correct.  He speculated that it might have been based on a telephone call from his wife but during his explanation it became clear that the “client” referred to in the letter was not Mr Winkworth, rather it was the estate developer Fortress.[14]  It related to the removal of rubbish from their (Fortress’s) development sites (where builders stockpiled rubbish and equipment). He said that this delivers savings to both the builder and client (Fortress) on tip fees – which would not be achieved if an earthmoving contractor is engaged.  He said that Fortress let him use some blocks for stockpiling materials and “they just trust me to keep them neat and tidy.”[15]
  2. [98]
    In relation to the language “excavating at the same time”, Mr Moore agreed that McIvor Pty Ltd engaged contractors who were benching multiple sites around this time “across the road on Laguna Avenue” but he said “Not on this site. Not on …1008.” 
  3. [99]
    He said that at this time he was building a number of houses in the street and he and other builders had used Lot 1008 “for a little bit of stockpiling of rubbish and material.”[16] He said, “It had a lot of weeds on the block.”  He speculated: “So my diary entry probably says that I cleared that site. I can’t remember any trees … but I’m – there was a lot of weeds – tall weeds – thick weeds … but I actually cleaned all the – all the debris and – and cleared the – the – the weeds off the front of the site on that date.”
  4. [100]
    Mr Moore continued: he said he has a four-tonne bobcat and tip truck “and I tend to move stuff off sites, preparing for a future build, and that’s what I would have done on that date.”[17]
  5. [101]
    He was asked if he removed turf off the soil with his machinery and he said: “No. Probably a little bit of turf come with the weeds and – and other bits and pieces, but no, not – no. That’s - that’s – that’s a job of an ex – earthmoving company.  When you – when you go to build a house, you’ve got to take the top 100 mil of soil with the grass with it. So – and that’s called a bench or a cut and fill. That is the start of the – the build. Not just removing rubbish …”[18]  Mr Moore said, “you can’t cut and fill a block until you’ve got a signed contract and you have … got proof of finance.”[19]
  6. [102]
    Mr Moore was asked to look at the video. Because some grass was visible on the site Mr Moore considered that a bench or cut and fill had not been performed on the site.  He said that he does not have the machinery to do that kind of work.  He said he has a four-tonne bobcat that will remove grass, but ten-tonne machinery is needed to bench.  He later said that he did not “do benches.”[20]
  7. [103]
    Around the time he was on the site, Mr Moore said “most of the sites had a few weeds and a bit of grass on them, but that – you know – yeah, they were all just building sites with for sale signs out the front.”[21] 
  8. [104]
    The following exchange was interesting. Counsel for CSR: “I asked you earlier the question of who removed the grass and you told me you did not know?”  Mr Moore: “Well, I – I was trying – I – the grass is not removed. It’s still there. You can see it, on the video. I removed the rubbish and the weeds and the grass from the front of the block.”  He followed up by saying: “The nature strip, yes.”[22]
  9. [105]
    In closing submissions, the respondent submits that the 17 November 2020 and 7 June 2021 letters, when read in the context of the communication between Mr Winkworth and CSR, shows that at the time those letters were produced, both Mr Moore and Mr Winkworth considered that the work that took place on 31 July 2020 was both site preparation and excavation.  The respondent says that this evidence is crucial to its reliability, being both the closest to contemporaneous evidence available, and the least susceptible to being tailored to suit the requirements of the grant, given the original decision had not yet been made.
  10. [106]
    Further, the respondent submits that although Mr Moore did not prepare the letters himself, they were prepared on the basis of his contemporaneous diary notes of the work that was undertaken on 31 July 2020, or on the basis of a telephone call between him and Mrs Moore in which he conveyed that site preparation and excavation occurred on 31 July 2020.
  11. [107]
    Mr Moore did not have his diary notes with him when he gave evidence, and Mrs Moore did not give evidence in the hearing. As noted above, Mr Moore speculated: “So my diary entry probably says that I cleared that site. I can’t remember any trees … but I’m – there was a lot of weeds – tall weeds – thick weeds … but I actually cleaned all the – all the debris and – and cleared the – the – the weeds off the front of the site on that date.”  This evidence throws in to doubt the extent to which the work in fact undertaken by Mr Moore actually extended into Lot 1008, if at all.  Some of the evidence seems to suggest it was “the front of the site” or “the nature strip,” which may refer to the footpath. 
  12. [108]
    Finally, the respondent says that the file note of the conversation between Mr Winkworth and Mr Scanlan confirmed that “it wasn’t just tree clearing that occurred on 31 July 2020, the excavation did in fact commence on the same date.” As I have already noted, any suggestion of tree clearing on Lot 1008 appears to have come from Mr Scanlan.  There is no evidence that there were trees on Lot 1008 prior to 31 July 2020. The only evidence concerning the vegetation on Lot 1008 on or before 31 July 2020 is that of Mr Moore who said “I can’t remember any trees …”.  Mr Winkworth said “… - there was no trees. Zero trees. It’s just plain, flat grass.”[23]

Findings

  1. [109]
    The new evidence is allowed. I consider the witnesses to be credible and the evidence to have an important influence on my decision in this matter.
  2. [110]
    Despite the statements contained in the three “To Whom it May Concern” letters on McIvor Pty Ltd letterhead, the evidence does not support a conclusion that any excavation and site preparation works on Lot 1008 in fact occurred on 31 July 2020.
  3. [111]
    At its highest, some grass and weeds were removed from the front of Lot 1008 on or about 31 July 2020 using a four-tonne bobcat while tidying up the Lot which had been used by McIvor Pty Ltd and possibly other builders to stockpile rubbish from other building sites under the express or implied authority of the property developer.
  4. [112]
    I accept that the information contained in the McIvor Pty Ltd letters was not authored by the builder, Mr Moore.  The content of the 17 November 2020 letter and in the 7 June 2021 letter is identical.  Both letters were generated in response to a request from Mr Winkworth for a “commencement notification.”  There does not appear to be an OSR form for “commencement notification” however, the wording in these letters reflects the language in the ‘Guide to completing the HomeBuilder grant application form’ - that commencement of construction means the commencement of excavation and site preparation work.  These letters appear to be ‘proforma’ letters generated from the McIvor Pty Ltd office. They contain no detail or individualised content – the letters do not describe what work was performed.  The fact that 31 July 2021 is identified as the construction commencement date, suggests that it was a date that appeared in Mr Moore’s diary.  It was the date when he “cleared” stockpiled rubbish and weeds off the front of Lot 1008. Mr Moore speculated: “So my diary entry probably says that I cleared that site.”   
  5. [113]
    I accept the evidence of Mr Moore that the references in the third McIvor Pty Ltd letter (9 June 2021) to the “client” is a reference to the estate developer and not Mr Winkworth.
  6. [114]
    I accept that Mr Winkworth did not state that anything other than the clearing of grass occurred on 31 July 2020 and that Mr Winkworth was consistent in his assertions that works that he understood to be the “commencement of construction” did not occur until after the contract commencement date. 
  7. [115]
    The respondent submits “that at the very least, the Builder cleared the land at the Property using machinery, and that this action constitutes both site preparation and excavation.”  
  8. [116]
    I accept that the work that was undertaken by McIvor Pty Ltd on 31 July 2020 was not done at the direction of Mr Winkworth, rather it was done voluntarily by McIvor Pty Ltd who had used the front of the Lot to stockpile rubbish and material from other building sites. I accept that the work was done for the mutual benefit of the builder and the developer, Fortress, and not Mr Winkworth. Therefore, whether the work undertaken on 31 July 2020 met the definition of “excavation and site preparation works,” which I am not satisfied that it does, is irrelevant.
  9. [117]
    Although my reasons for decision mean the issue is not relevant, for completeness I will address the matter concerning the updated direction.

Does Administrative Direction 25 May 2022 or the Administrative Direction at the time of the decision (1 March 2021) apply?

  1. [118]
    The applicant says the updated direction applies and therefore the applicant entered into an ‘eligible transaction.’  CSR says the 1 March 2021 Administrative Direction applies.
  2. [119]
    In McCarthy & McCarthy v Commissioner of State Revenue[24] at [5]: “The respondent refers in its submissions to an Administrative Direction made on 31 July 2020, and a further Administrative Direction made on 6 January 2021. The respondent submits that the operation of the original Direction is saved in regard to the applicants’ accrued rights. However, the later version was in force at the time of the original decision on 12 January 2021. The law as at the date of the original decision is the law to be applied by the Tribunal” (Citing: s 60(2)(b) FHOGOHOGA).
  3. [120]
    I can see no reason why the same reasoning would not apply in this case.

Conclusion

  1. [121]
    The transaction the subject of the HomeBuilder grant application complied with paragraph 1.b of the Administrative Direction.
  2. [122]
    The transaction is an eligible transaction.
  3. [123]
    The applicant is entitled to payment of the grant.

ORDERS

  1. [124]
    The appeal is allowed.
  2. [125]
    The grant should be paid to Mr Winkworth and Ms Fewtrell.

Footnotes

[1]First Home Owner Grant and Other Home Owner Grants Act 2000 (Qld).

[2]T1-6, lines 25 to 28.

[3]Exhibit 3, [66].

[4]Exhibit 3, [35].

[5]T1-17, line 45 to T1-18, line12.

[6]T1-32, lines 8 to 12.

[7]T1-49, lines 6 to 9.

[8]T1-49, lines 40 to 41.

[9]T1-49, lines 44 to 45.

[10]T1-53, line 47; T1-50, line 1.

[11]T1-43, line 32.

[12] T1-56, lines 36 to 46; T1-57, lines 1 to 3.

[13] T1-75, lines 25 to 28.

[14]T1-78, lines 27 to 34.

[15]T1-81, lines 46 to 47.

[16]T1-68, lines 41 to 47; T1-69, lines 1 to 3.

[17]T1-69, lines 15 to 18.

[18]T1-69, lines 20 to 25.

[19]T1-82, lines 2 to 7.

[20]T1-74, line 8.

[21]T1-72, lines 24 to 26.

[22]T1-73, lines 25 to 32.

[23]T1-64, lines 17 to 18.

[24][2022] QCAT 342.

Close

Editorial Notes

  • Published Case Name:

    Winkworth v Commissioner of State Revenue

  • Shortened Case Name:

    Winkworth v Commissioner of State Revenue

  • MNC:

    [2023] QCAT 282

  • Court:

    QCAT

  • Judge(s):

    Member McNamara

  • Date:

    28 Jul 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
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404
2 citations
Jump To
Cite 1 - [1984] 1 Qd R 404
Cite 2 - [1984] 1 Qd R 404
McCarthy & McCarthy v Commissioner of State Revenue [2022] QCAT 342
2 citations
Jump To
Cite 1 - [2022] QCAT 342
Cite 2 - [2022] QCAT 342

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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