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- Unreported Judgment
Phillips v Commissioner of State Revenue QCAT 426
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Phillips v Commissioner of State Revenue  QCAT 426
louise maree phillips
commissioner of state revenue
General administrative review matters
30 October 2023
On the papers
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – review of decision to refuse payment of Home Builder Grant – where home owner held title in company shares and not by way of strata title – where grant refused by Commissioner – where Administrative Direction conferred discretion in Commissioner to change requirement or process necessary to ensure proper administration and integrity of the Home Builder Grant – where Commissioner refused to exercise discretion – where Administrative Direction did not align with homeowner grant under same legislation which included company title – Tribunal exercised discretion in favour of applicant
First Home Owner’s Grant and Other Grants Act 2000 (Qld)
Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 18-20.
Aurizon Operations Limited v Commissioner of State Revenue; Australian Eastern Railroad Pty Ltd v Commissioner of State Revenue  QCAT 338
IC Assets Pty Ltd & Anor v Commissioner of State Revenue  QSC
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
- The Applicant, Louise Maree Phillips, owns her home through a "company title" structure. Company title was an alternative method of ownership of a home unit before strata legislation was introduced.
- Strata legislation provides for the individual ownership of a unit (called a lot) and shared ownership over driveways, foyers, lifts, gardens, etc (called common property) through a body corporate.
- Company title also provides for shared ownership of common property through shareholding in a company and individual ownership of units through perpetual leases from the company to the shareholders of the company.
- Ms Phillips applied to the Commissioner for the HomeBuilder Grant (the “Grant"). The Commissioner refused the grant because Ms Phillips owns her home through a company title structure.
- Ms Phillips objected to the Commissioner's decision and requested the Commissioner exercise their discretion under the relevant administrative direction to allow the grant. Ms Phillips requested the discretion be exercised so as to provide for the grant to be paid to homeowners in company title structures.
- The Commissioner has refused to exercise the discretion.
- Toorak Holdings Pty Ltd (ACN 009 680 380) is the owner of an estate in fee simple in the land described as Lot 2 on RP 97150. In the late 1950s, the “Camden" apartment building was built on this land.
- The construction of the “Camden" apartment building predated the strata title legislation, owners of units in the “Camden" building were allocated shares in Toorak Holdings Pty Ltd and granted 99-year leases over the parts of the “Camden” building that formed their unit.
- The constitution of Toorak Holdings Pty Ltd further provides an entrenched right for owners to continually renew the lease over their unit for a further 200 years at any time.
- On 4 June 2020, the Australian Government announced the Grant of $25,000, 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.
- On 2 July 2020, the Queensland Government entered into the National Partnership Agreement with the Commonwealth Government. The National Partnership Agreement provides for the funding of the Grant by the Australian Government and the administration of the Grant by the State and Territories in accordance with the established guidelines.
- On 30 July 2020, the Queensland Treasurer approved an administrative direction for the administration of the Grant in Queensland by the Commissioner (the “Original Direction")
- On 20 August 2020, the First Home Owner’s Grant and Other Grants Act 2000 (Qld) (the “FHOG Act”) was amended to provide for the administration of the Grant.
- On 2 November 2020, Ms Phillips entered into a contract with Brad Smerdon Constructions for the renovation of her home. This contract provides for substantial renovations to Ms Phillips's home as is required by the Original Direction and Amended Direction. The renovation works were subsequently completed.
- On 3 November 2020, Ms Phillips submitted an application for the Grant.
- On 2 July 2021, the Queensland Treasurer approved amendments to the Original Direction, including the insertion of paragraph 63 which granted the Commissioner discretion to amend the administration direction (the “Amended Direction").
- On 3 August 2021, the Commissioner refused payment of the Grant to Ms Phillips because she owned her home through a company title structure.
- On 27 August 2021, Ms Phillips objected to the decision to refuse payment of the Grant. The grounds of the objection included the failure by the Commissioner to exercise the discretion under paragraph 63 of the Amended Direction.
- On 6 October 2021, the Commissioner disallowed Ms Phillips's objection and confirmed the decision to refuse payment of the Grant.
- On 3 December 2021, Ms Phillips filed an application to review the objection decision in the Tribunal.
- The above recitation of the facts is substantially agreed to by the Commissioner.
Grounds of Review
- The grounds of review are limited to the grounds of the objection and the decision of the Tribunal is based on a reconsideration of the evidence before the Commissioner when the decision was made in accordance with the same law that applied to the making of the original decision.
- Section 59 of the FHOG Act provides:
Right of review by QCAT
An objector who is dissatisfied with the commissioner’s decision on the objection may apply, within 60 days after the objector receives notice of the commissioner’s decision on the objection and as otherwise provided under the QCAT Act, to QCAT for a review of the decision.
- Section 60 provides:
QCAT to decide review on evidence before the commissioner
- This section applies to a proceeding for a review by QCAT of a decision of the commissioner on an objection.
- 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 of the decision in accordance with the same law that applied to the making of the original decision.
- The grounds on which the application for review is made are limited to the grounds of the relevant objection unless QCAT otherwise orders.
- If QCAT decides, under the QCAT Act, section 139, that the proceeding should be reopened, the issues in the proceeding that are reheard must be—
- a.heard and decided by way of a reconsideration of the evidence given in the proceeding for the review of the decision; and
- b.decided in accordance with the same law that applied to the making of the original decision.
- In this section—
new evidence means evidence that was not before the commissioner when the decision on the objection was made.
original decision means the decision of the commissioner that was the subject of the relevant objection.
relevant objection means the objection to which the decision of the commissioner relates.
- Ms Phillips principal ground of objection is that the Commissioner erred in failing to exercise the discretion vested in him by paragraph 63 of the Amended Direction.
- Paragraph 63 of the Amended Direction confers on the Commissioner a discretion to amend or vary the Amended Direction. A similar discretion is not contained in the Original Direction. The Commissioner submits that the Original Direction applies, being the administrative direction in force on the date Ms Phillips submitted her application for the Grant online.
- Ms Phillips submits that the Amended Direction applies, being the administrative direction in force on the date the Commissioner made their decision.
- The Commissioner submits that the discretion was not conferred to make concessions for particular applications on an ad hoc basis, rather it was conferred to amend (for all purposes) the requirements of the Administrative Direction from time to time. For this reason, the Commissioner submits that they cannot be compelled to exercise the discretion by Ms Phillips, nor does the Tribunal have the power to exercise the discretion.
- Ms Phillips submits that the Tribunal has all the functions of the decision-maker for the reviewable decision being reviewed. For this reason, Ms Phillips submits that that the Tribunal has the power to exercise the discretion.
The Commissioner’s decision
- Ms Phillips was advised by letter dated 3 August 2021 inter alia that:
Paragraph 24 of the Administrative Direction states that for a substantial renovation contract, the applicant must be the sole registered freehold owner of the property as at the contract commencement date.
Documentation provided for your HomeBuilder Grant application indicates that you have entered into a contract for the renovation of the property located at 3A/11 Hillside Crescent, Hamilton on 2 November 2020
Records obtained from the title registry office evidence that the registered freehold owner of property is to Toorak Holdings Pty limited. As you are not the sole registered freehold owner of the property as at 2 November 2020, paragraph 1.c and 24 are not satisfied.
- Paragraph 1.c defines one of the eligible transactions as:
a substantial renovation contract made by the freehold owner of a home in Queensland if the contract commencement date is between 4 June 2020 and 31 December 2020 (both dates inclusive), and the construction commencement date is on or after the contract commencement date and within 3 months of the contract commencement date or a further period not exceeding 3 months approved by the Commissioner.
- Paragraph 24 provides:
If an application relates to a comprehensive home building contract, the applicant must be the sole registered freehold owner of the property as at the contract commencement date or will be the sole registered freehold owner of the property no later than laying of foundations, when the first progress payment is made.
- The Administrative Direction was to provide guidance to the Commissioner and his delegates on the eligibility criteria for applicants under the Grant.
- The Administrative Direction is described as the home builder direction in the FHOG Act and is defined as the administrative direction called ‘Australian Government HomeBuilder Grant—Queensland’ made by the Minister and published on the department’s website.
- The first Administrative Direction was published on 1 October 2020. The amended version was published on 2 July 2021. The first version makes no mention of the FHOG Act which commenced on 1 July 2000. It dealt with the First Home Owners Grant.
- The FHOG Act was amended to incorporate the National Partnership Agreement and the amendments came into effect on 20 August 2020. Part 3B sets out the criteria for the Grant.
- Under Part 3B section 25P of the FHOG Act as amended the Commissioner is responsible for administering the home builder direction.
Section 25Q Application for grant and when grant is payable
- A person who is eligible to apply for a home builder grant under the home builder direction may apply for the grant.
- An application for a home builder grant must comply with the home builder direction.
- “Freehold” is defined in the Administrative Direction as meaning an estate in fee simple. However, the term is not found in the FHOG Act. Section 8 which I will refer to below does refer to “an estate in fee simple” as one of the criteria of ownership.
- The criteria referred to in paragraph 24 of the Administrative Direction that the applicant for a grant be the sole registered freehold owner is not a criteria contained in the FHOG Act.
- In my opinion the Original Administrative Direction was inconsistent with the National Partnership Agreement and the FHOG Act as amended.
- The National Partnership Agreement forms the basis for the Grant. This is acknowledged in both the Original Administrative Direction and the Amended Administrative Direction which provided:
The Australian Government provides funding for the payment of the grant in accordance with program guidelines established by the Australian Government and set out under a National Partnership Agreement. State and Territory governments administer the grant on behalf of the Australian Government in accordance with the National Partnership Agreement.
- Similarly, the explanatory memorandum provides:
The Australian Government provides funding for the payment of the grant. States and Territories administer the grant on behalf of the Australian Government in accordance with the National Partnership Agreement on HomeBuilder National Partnership Agreement.
- Clause 17 of Part 1 of the National Partnership Agreement provides, inter alia:
The States and Territories agree to be responsible for:
- administering HomeBuilder. Each State will make the necessary arrangements to administer HomeBuilder consistent with the terms, conditions, eligibility criteria and principles set out in Schedule A;
- ensuring the integrity of HomeBuilder by taking reasonable steps to make sure that recipients meet the eligibility criteria set out in Schedule A, and by having regard to the implementation guidelines outlined in Schedule B when designing their programs; ..
- Paragraph 13 of Schedule A of the National Partnership Agreement provides:
Eligible owner-occupier(s) will be the natural person(s) who is/are listed on the certificate of title of the property and resides or intends to reside at the property.
Where applicable, States should also have regard to their existing requirements for policies such as first homeowner grants, in order to align definitions.
Applicants must be either a single natural person, or two natural persons in a couple.
- Paragraph 1 of Schedule B of the National Partnership Agreement provides:
Where possible, States should align HomeBuilder application processes with existing processes for First Home Owner Grants (or similar).
- Pursuant to the FHOG Act, the first homeowners’ grant is available to “home owners” Section 7 of the FHOG Act states:
A person is a home owner or owner of a home if the person has a relevant interest in the land on which the home is built.”
- Section 7 of the FHOG Act defines “home owner” and “owner of a home” as a person who has a relevant interest in the land on which the home is built.
- Section 8 of the FHOG Act since its enactment has remained relatively unchanged. Sub-paragraph (h) (ii) was added later but the section now relevantly provides:
Meaning of “relevant interest”
8.(1) A “relevant interest” in land is—
- an estate in fee simple; or
- an interest in a company’s shares if the Commissioner is satisfied that—
- the interest entitles the holder of the interest to exclusive occupation of a specified home owned by the company; and
- the home was built before the holder of the interest acquired the interest or entered into an agreement to acquire an interest; and
- the value of the shares is not less than the value of the company’s interest in the home;
- The Administrative Direction before amendment was inconsistent, not only with the National Partnership Agreement but also with the requirements of the former homeowner grants of the FHOG Act. It unnecessarily constrained the category of grantee and was inconsistent with the purpose of the FHOG Act.
- I expect this was one of the reasons for the amendments contained in the Amended Administrative Direction published on 2 July 2021. It included clause 63 which provided:
The Commissioner may amend or vary the terms of this administrative direction to:
a. change any requirement or process necessary to ensure the proper administration and integrity of the HomeBuiIder Grant or
b. ensure it remains consistent with the National Partnership Agreement should changes be made to that agreement after commencement of this administrative direction.
- It is not in dispute that the Commissioner or delegate made their decision at a time after the publication of the Amended Administrative Direction. I am satisfied that the Amended Administrative Direction applies in this case. I see no basis for the Commissioner’s submission that the relevant date was the date Ms Phillips made her application.
- The original decision was made on 3 August 2021. Despite the fact that the Amended Administrative Direction was published (2 July 2021) before that date the Commissioners’ delegate was not prepared to exercise the discretion in paragraph 63 of that Administrative Direction for reasons that are not particularly clear in the decision of 6 October 2021 of the Review and Dispute Division.
- In my opinion, it is clear from the program guidelines for the Grant established by the National Partnership Agreement, that the Grant must be available, also to natural persons who own their home through a company title structure. Such an interpretation aligns with the home owner grant legislation.
- The Commissioner asserts that the review jurisdiction does not permit this Tribunal from doing anything other than reviewing the decision. It submits that the Tribunal cannot exercise the Commissioner’s discretion under paragraph 63 as it is outside the scope of the determination of Ms Phillip’s application for a Grant.
- The Commissioner submits that it was required to determine whether the applicant met the eligibility criteria set out in s. 25Q(3) of the FHOG Act and whether the transaction met the eligibility criteria of the Administrative Direction definition of eligible transaction published at the time of the making of the original decision. The Commissioner asserts that paragraph 63 does not form part of the eligibility criteria and that it dd not form part of the same law that applied to the making of the original decision.
- The Commissioner submits that it is unlikely that the decision maker is legally obliged to reconsider policy settings at the instance of a particular application or applicant.
- Ms Phillips submits that pursuant to s. 19(c) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) the Tribunal has all the functions of the decision-maker for the reviewable decision being reviewed. She relies upon the decision of Aurizon Operations Limited v Commissioner of State Revenue; Australian Eastern Railroad Pty Ltd v Commissioner of State Revenue for authority that s. 19(c) includes the exercise of a discretionary power.
- Ms Phillips submits that in order to ensure that the proper administration and integrity of the Grant, the Tribunal should vary the Amended Administrative Direction to align paragraph 1(c) with the National Partnership Agreement.
- In Aurizon, in considering whether to exercise the discretion, Member Howe noted:
Given the open nature of the discretion, a guideline may note relevant considerations and circumstances for consideration, but the circumstances noted are not necessarily exhaustive.
- Further, Member Howe considered the observation on McMurdo J in Orica IC Assets Pty Ltd & Anor v Commissioner of State Revenue:
The relevant considerations are confined only by the subject-matter, scope and purpose of the relevant legislation.
- The Commissioner submits that Aurizon is distinguishable as the exercise of the direction there was only related to that decision and did not involve the amendment of an administrative direction for all purposes.
- Though that may be the result of the exercise of the discretion I do not consider that to be a disentitling factor merely because there may be few others in a similar position as Ms Phillips. The rejection of people in her category was clearly an oversight and discriminatory. Why as an owner she would have been entitled to a grant under the earlier homeowner grants but she is not entitled to a home builder grant?
- The Commissioner also submits that to exercise the discretion now may retrospectively cause potential unfairness to other parties in a similar position to Ms Phillips. I do not consider that to be a valid reason not to exercise the discretion. Indeed, if that attitude were taken in all cases the discretion would never be exercised.
- The Commissioner has requested that if I do not accept their submissions that I should refer the matter back to the Commissioner to reconsider the decision. However, considering that all other criteria had been satisfied I do not think that is necessary. Standing in the shoes of the Commissioner I exercise the discretion under paragraph 63 to include in the eligibility criteria of an applicant a person who has an interest of a kind allowed for in the provisions of s. 8(1)(h) of the FHOG Act.
- In conclusion, I make the following orders:
- The Commissioner’s decision of 6 October 2021 is set aside;
- The Applicant be paid the HomeBuilder Grant of $25,000;
- The parties may file and exchange any application for costs supported by evidence and written submissions by 4:00 pm on 30 November 2023.
 Respondent’s documents page 19
 Respondent’s documents page 89
 Respondent’s documents page 195-200
 Respondent’s documents page 19-45 56-57 and 201
 Documents, pages 213 and 220; Explanatory Notes for Amendments, Royalty Legislation Amendment Bill 2020, page 1
 Respondent’s documents pages 213 and 220.
 The State of Queensland, Queensland Government Gazette, No 384, 28 August 2020, 847.
 Respondent’s documents pages 127-130.
 Respondent’s documents pages 220-226; Outline of the Respondent's Submissions, 24 February 2022, page 8.
 Respondent’s documents pages118-119
 Respondent’s documents pages 48 - 199.
 Respondent’s documents pages 1-6.
 Application to Review Decision, ﬁled on 3 December 2021.
First Home Owner Grant and Other Home Owner Grants Act 2000 (Qld), ss 59 - 60; Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 18-20.
 I note that the Commissioner refers to the Original Administrative Direction and not the Amended Administrative Direction which is in different terms but not such as to be relevant to the issues being determined.
 Explanatory Notes for Amendments, Royalty Legislation Amendment Bill 2020, page 1.
 Documents p 230
  QCAT 338
 Ibid. 
  QSC 1
- Published Case Name:
Phillips v Commissioner of State Revenue
- Shortened Case Name:
Phillips v Commissioner of State Revenue
 QCAT 426
30 Oct 2023