Francis v Commissioner of State Revenue
[2023] QCAT 464
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- Unreported Judgment
- Francis v Commissioner of State Revenue[2023] QCAT 464
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Francis v Commissioner of State Revenue[2023] QCAT 464
Francis v Commissioner of State Revenue[2023] QCAT 464
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Francis v Commissioner of State Revenue [2023] QCAT 464 |
PARTIES: | megan alecia francis (applicant) v commissioner of state revenue (respondent) |
APPLICATION NO: | GAR047-22 |
MATTER TYPE: | General administrative review matters |
DELIVERED ON: | 24 November 2023 |
HEARING DATE: | 29 March 2023 |
HEARD AT: | Brisbane |
DECISION OF: | Member Scott-Mackenzie |
ORDERS: |
|
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where application made for a first home owner grant – where the respondent refused to authorise payment of the grant – whether new evidence should be allowed – whether new ground should be allowed – whether the parties to the building contract dealt with each other at arm’s length – whether contract forms part of a scheme to circumvent limitations on, or requirements affecting, eligibility or entitlement to the grant for an eligible transaction – whether transaction is an eligible transaction – whether the contract is a comprehensive home building contract Administrative Direction Australian Government Homebuilding Grant – Queensland Corporations Act 2001 (Cth), s 210 First Home Owner Grant and Other Home Owner Grants Act 2000 (Qld), s 5, s 16, s 25Q, s 60 Human Rights Act 2019, s 24 Queensland Building and Construction Act 1991 (Qld), s 42B, s 43, s 67, s 99, schedule 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 21, s 139 Alexander v Commissioner of State Revenue [2023] QCAT 409 Australian Securities and Investments Commission v Australian Investors Forum Pty Ltd & Ors [2005] NSWSC 267 Australian Trade Commission v WA Meat Exports Pty Ltd (1987) 75 ALR 287 Bielefeld v Commissioner of State Revenue [2015] QCAT 222 Commissioner of State Revenue v Taske [2023] QCATA 121 Edwards v Commissioner of State Revenue [2023] QCAT 413 Federal Commissioner of Taxation v AXA Asia Pacific Holdings Ltd [2010] FCAFC 134 Federal Commissioner of Taxation v BHP Billiton Ltd (2011) 244 CLR 325 Granby Pty Ltd v The Commissioner of Taxation of the Commonwealth of Australia [1995] FCA 1217 Green & Anor v Commissioner of State Revenue [2002] QCAT 297 Lowe v Commissioner of State Revenue [2014] QCAT 493 Taske v Commissioner of State Revenue [2022] QCAT 416 Trustee for the Estate of the late A.W. Furse No 5 Will Trust v. Federal Commissioner of Taxation 91 ATC 4007 Valra Pty Ltd v Mag Men Holdings Pty Ltd [2019] FCA 1897 Wilson Transformer Company Pty Ltd v Anti-Dumping Review Panel [2022] FCAFC 4 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Self-represented, supported by Mr James Priest |
Respondent: | Ms Spottiswood of counsel, instructed by Acting Review Officers, Ms Donges and Ms McGlashan |
REASONS FOR DECISION
Introduction
- [1]The applicant has made application to the Tribunal for review of a decision of the respondent made 8 December 2021 to confirm a decision to refuse an application for a first home owner grant made by the respondent on 19 July 2021 (application).
Background
- [2]The applicant, on 18 December 2020, made application to the respondent for a first home owner grant under section 16 of the First Home Owner Grant and Other Home Owner Grants Act 2000 (Qld) (FHOG Act).
- [3]On 19 July 2021 the respondent refused to authorise payment of the grant (original decision).
- [4]On 15 September 2021 the applicant lodged with the respondent a written objection to the original decision (objection).
- [5]The respondent confirmed the original decision on 8 December 2021 (objection decision).
- [6]On 7 February 2022 the applicant made application to the Tribunal for review of the objection decision.
Objection decision
- [7]The original decision was confirmed on grounds that may be summarised in the following terms:
- the transaction is not an eligible transaction the respondent being satisfied the contract forms part of a scheme to circumvent limitations on, or requirements affecting, eligibility or entitlement to the grant for an eligible transaction; and
- the contract is not a comprehensive home building contract within the meaning of paragraph 15 of the Administrative Direction Australian Government Homebuilding Grant – Queensland (Administrative Direction). The Direction was approved by the then Treasurer and Minister for Infrastructure and Planning on 30 July 2020 to establish the basis for the administration of the grant in Queensland by the respondent or its delegates. It sets out the eligible transactions, eligibility criteria, how to apply for the grant, payment of the grant, and the obligations of an applicant.
Grounds of review
- [8]The grounds of review may be summarised in the following terms:
- the objection decision refers to an incorrect company;
- a comprehensive home building contract may exclude a full kitchen and decorative and ancillary items;
- the applicant was entitled to choose a builder it believed capable of fulfilling the contract;
- it was a business decision for Intrinsic Project Services Pty Ltd (Intrinsic) to undertake the building work;
- it is common for the owner of a building company to be a licensed builder and registered nominee for the company; and
- extracts from the objection decision are ‘statements’, ‘unsupported commentary’ or ‘repetitive comments and opinion’.
Written material and submissions
- [9]The parties filed extensive written material and submissions, including:
Applicant
- documents filed with the application, comprising:
- response to the original decision;
- notice of the objection decision and the reasons for the decision;
- response to the objection decision;
- inspection certificate – fit for use (form 18B) issued 29 July 2021;
- letter from Dickensons Accountants dated 8 December 2021. The letter expresses the view the contract is an ‘arm’s length’ transaction, and is not “... part of a scheme to circumvent the limitations on, or requirements affecting, eligibility or entitlement to the grant for an eligible transaction ...”;
- Australian Securities and Investments Commission search of Intrinsic as of 4 January 2022;
- a statutory declaration by Mark Johannes Thomas Schutters made 4 February 2022 to the effect that on 30 June 2019 the directors of Intrinsic resolved to make the following allotments of shares:
applicant 249,999 ordinary shares
James Williams Priest 200,000 ordinary shares.
Carmel Majella Priest 50,000 ordinary shares.
His office, he declares, inadvertently omitted to lodge the necessary documents with the Australian Securities and Investments Commission;
- response to the objection decision and submissions by the respondent filed 17 June 2022. The material filed included material not before the respondent when the objection decision was made, comprising:
- quotation Hinton Constructions to the applicant dated 15 September 2021. The quotation is to construct a home (building work) on land at 6 Turpin Road, Kentville (land). The applicant gave evidence the quotation is incorrectly dated, the correct date is 15 September 2020. I accept her evidence. The quotation is for $316,250.00.
It excludes the following items:
- BA and DA applications for approval to commence completed by owner prior;
- cabinetry throughout;
- kitchen by others;
- proposed 12000 x 6000 carport;
- proposed tanks (x3);
- proposed 12000 x 9000 shed;
- air conditioning system complete;
- solar photovoltaic system;
- proposed HSTP system; and
- any other Items not specified;
- quotation Intrinsic to the applicant dated 30 October 2020. The quotation is to carry out the building work on the land. It is for $293,750.00.
It excludes the following items:
- kitchen cabinetry and fixtures;
- proposed 12000 x 6000 carport;
- proposed tanks (x3);
- proposed 12000 x 9000 shed;
- air conditioning system complete;
- fencing or landscaping; and
- solar photovoltaic system
(excluded work)
Three days later, on 2 November 2020, the applicant and Intrinsic entered into a contract to carry out the building work on the land (contract). The contract excluded the excluded work.
At the time, the applicant:
- had a relevant interest in the land;
- was the sole director and secretary of Intrinsic;
- was a shareholder in Intrinsic; and
- was the nominated builder for Intrinsic.
She guaranteed the performance of the terms and conditions of the contract by herself.
- letter Bartley Burns Pty Ltd to Intrinsic (undated). The letter approves commencement of the building work under the Planning, Act 2016 (Qld), subject to compliance with any conditions applicable to the approval. The date of the approval is 21 December 2020. The conditions of the approval are enclosed with the letter;
- inspection certificate/aspect certificate/QBCC licensee aspect certificate (form 16) dated 9 June 2021; and
- final inspection (residential) by Bartley Burns Pty Ltd. The inspection was carried out on 18 March 2022.
(new evidence)
The applicant relies on a ground not a ground of the objection. The new ground asserts the objection decision affects the applicant’s right to own property alone or in association with others contrary to section 24(1) of the Human Rights Act 2019 (Qld) (HR Act) and arbitrarily deprives her of her property, contrary to section 24(2) of the Act (new ground).
Whether the new evidence and new ground should be allowed is considered below, under the subheading Issue one[1]; and
- additional material filed 27 September 2022.
Respondent
- a folder containing the documents required by section 21(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) filed 5 April 2022 (section 21(2) documents). The folder contains the notice of the objection decision and the reasons for decision, objection correspondence, homebuilder grant team materials, legislation, cases, and other materials;
- preliminary submissions filed 20 May 2022. Annexed to the submissions is a chronology of events, several key documents, and several decided cases; and
- submissions in reply filed 11 October 2022. Annexed to the submissions are the HR Act, the Administrative Direction, and several decided cases.
Legislation
- [10]
- [11]An applicant is entitled to be paid the grant if:
- 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
- the transaction for which the grant is sought is an eligible home builder transaction; and
- the relevant requirement in relation to the eligible home builder transaction has been met.[4]
- [12]Relevant requirement, in relation to an eligible home builder transaction, is defined in subsection (5) of section 25Q of the FHOG Act. It means:
- if the transaction is a contract for the purchase of a new home within the meaning of the home builder direction - the contract has been completed within the meaning of the home builder direction; or
- if the transaction is a comprehensive home building contract within the meaning of the home builder direction - the foundations have been laid and the first progress payment has been paid to the builder under the contract; or
- if the transaction is a contract for a substantial renovation within the meaning of the home builder direction – construction under the contract has commenced and at least $150,000.00 of the contract price has been paid to the builder under the contract.
- [13]Only one home builder grant is payable for the same eligible home builder transaction.[5]
- [14]The relevant provisions of the Administrative Direction include:
Eligible transactions
- Each of the following transactions are eligible transactions for payment of the grant:
a. a contract for the freehold purchase of a new home in Queensland 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 4 June 2020 and within 6 months of the contract commencement date;
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 6 months of the contract commencement date;
c. 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 March 2021 (both dates inclusive), and the construction commencement date is on or after the contract commencement date and within 6 months of the contract commencement date.
...
Licensed builder requirements for eligible transactions
7.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 building work under the Queensland Building and Construction Commission Act 1991 that was issued prior to 4 June 2020.
8.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.
Disqualifying arrangements
8.A transaction is not an eligible transaction if the Commissioner is satisfied the contract forms part of a scheme to circumvent limitations on, or requirements affecting, eligibility or entitlement to the grant for an eligible transaction.
…
11.Also, unless satisfied to the contrary, the Commissioner must presume the existence of a scheme under paragraph 9 if the parties to the contract have not dealt with each other at arm’s length.
…
- Contract commencement date means the date when the contract is made.
- Completed or completion means:
…
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; or
…
15.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.
- Consideration means:
...
b. for a contract to have a home built – the total consideration payable for the building work; or
...
- A home is a building, fixed to land, that:
a. may lawfully be used as a place of residence; and
b. is a suitable building for use as a place of residence.
(Emphasis added)
Hearing
- [15]The applicant appeared at the hearing of the proceeding in person, supported by Mr James Priest. Ms Spottiswood of counsel appeared on behalf of the respondent. She was instructed by Acting Review Officers, Ms Donges and Ms McGlashan.
Oral submissions
Respondent
- [16]Ms Spottiswood, after referring to several provisions of the FHOG Act and the Administrative Direction, summarised the history of the home building scheme and the operation of the legislation, the Tribunal’s role, and the extent of the discretion given to the Tribunal.
- [17]She then referred the Tribunal to the decisions of the Supreme Court of New South Wales (Palmer J) in Australian Securities and Investments Commission v Australian Investors Forum Pty Ltd & Ors[6] on the meaning of ‘dealing at arm’s length’ in section 210 of the Corporations Act 2001 (Cth), the Federal Court of Australia (Lee J) in Granby Pty Ltd v The Commissioner of Taxation of the Commonwealth of Australia[7] on the meaning of the expression ‘dealing with each other at arm’s length’ and the Federal Court of Australia (Banks-Smith J) in Valra Pty Ltd v Mag Men Holdings Pty Ltd[8] on the principles for determining whether parties are dealing at arm’s length.
- [18]Reference was made by Ms Spottiswood to the contract[9], in particular items 2, 3, 4, and 7 of schedule 1[10] and page 122 of the section 21(2) documents where the contract is signed by the applicant as owner and Mr Priest for Intrinsic, submitting the applicant as the sole director of Intrinsic must have authorised Mr Priest to do so. She also referred to the living area of the house (424.7sqm)[11] and an Australian Securities and Investments Commission search at page 64 of the section 21(2) documents, observing the applicant was the sole director and secretary of Intrinsic at the time of the objection.
- [19]A search of the licence issued to Intrinsic under section 99 of the Queensland Building and Construction Act 1991 (QBCC Act) names the applicant as the nominee and key personnel.[12] Searches of the licences issued to the applicant and Mr Priest are at pages 75 – 81 of the section 21(2) documents and pages 82 – 89 respectively The applicant’s licence class status is low and medium rise, Mr Priest’s is medium rise.
- [20]The shareholdings in Intrinsic, Ms Spottiswood submitted, demonstrates a close relationship between the parties to the contract. The applicant must show the contract is an arm’s length transaction. Whilst conceding the decision is not directly relevant, she referred to Green & Anor v Commissioner of State Revenue[13] for the meaning of ‘scheme to circumvent’ in section 5(4) of the FHOG Act.
- [21]Ms Spottiswood referred to paragraph 15 of the Administrative Direction and the decisions of the Tribunal in Bielefeld v Commissioner of State Revenue[14] and Taske v Commissioner of State Revenue[15], the latter decision then being on appeal. Subsequently, the appeal was allowed by the Appeal Tribunal and the decision of the appellant confirmed.[16]
- [22]Ms Spottiswood, as she had in the respondent’s written submissions, referred to the work exclude from the contract.
Applicant
- [23]The applicant referred to several provisions of the QBCC Act. The provisions included:
- section 42B - Carrying out building work without a nominee;
- section 43 - Application for licence;
- section 67 - Notice that not a fit and proper person to individual who is not a licensee; and
- the definition of building work in the dictionary in schedule 2.
- [24]In further submissions, the applicant referred to section 43(1)(b) of the QBCC Act. She also referred to the contract, the quotation by Hinton Constructions and Australian Bureau of Statistics information.
Issues
- [25]The issues to be determined by the Tribunal may be summarised in the following terms:
- whether the new evidence and new ground should be allowed (issue one);
- whether the transaction is an eligible transaction (issue two); and
- whether the contract is a comprehensive home building contract within the meaning of paragraph 15 of the Administrative Direction (issue three).
Discussion
Issue one
- [26]Section 60 of the FHOG Act applies to a proceeding for a review by the Tribunal of a decision of the respondent on an objection.[17]
- [27]Subsection (2) of section 60 is couched in mandatory terms. The Tribunal must:
- hear and decide the review of the decision by way of a reconsideration of the evidence before the respondent when the decision was made, unless the Tribunal 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.
- [28]Further, the grounds on which the application for review is made are limited to the grounds of the relevant objection, unless the Tribunal otherwise orders.[18]
- [29]If the Tribunal decides, under section 139 of the QCAT Act, that the proceeding should be reopened, the issues in the proceeding that are reheard must be:
- heard and decided by way of a reconsideration of the evidence given in the proceeding for the review of the decision; and
- decided in accordance with the same law that applied to the making of the original decision.
- [30]Relevantly, three terms are defined in section 60(5). First, new evidence means evidence that was not before the respondent when the decision on the objection was made.
- [31]Secondly, original decision means the decision of the respondent that was the subject of the relevant objection.
- [32]And thirdly, relevant objection means the objection to which the decision of the respondent relates.
- [33]As the respondent correctly submits, it is a matter for the Tribunal to decide whether it is necessary in the interests of justice to allow new evidence.
- [34]
Therefore, the usual course of this litigation, [an application to review a decision of the respondent] expressly contemplates new evidence if it is in the interests of justice.[20]
- [35]It then continued:
The interests of justice are to be determined within the context of the review. The purpose of this review is to produce the correct and preferable decision by way of a fresh hearing on the merits. Further, the decision-maker must use its best endeavours to help the Tribunal decide the review, including providing a written statement of reasons and additional documents the Tribunal considers relevant.[21]
- [36]Later, the Tribunal added:
It is in the interests of justice for the Tribunal to consider cogent and probative evidence to produce the correct and preferable decision.
- [37]Here, it is in that the interests of justice for the Tribunal to consider the new evidence to produce the correct and preferable decision. It is allowed.
- [38]The applicant relies on a ground not a ground of the objection. The new ground, as has been said, asserts the objection decision affects the applicant’s right to own property alone or in association with others contrary to section 24(1) of the HR Act and arbitrarily deprives her of her property, contrary to section 24(2) of the Act.
- [39]The ground for the assertion is unclear. It was not pressed by the applicant at the hearing of the proceeding. The respondent submits the objection decision does not affect the applicant’s right to own property or arbitrarily deprives her of her property. I agree. The new ground is disallowed.
Issue two
- [40]Relevantly, a transaction is an eligible transaction for payment of the grant if a comprehensive home building contract made by the freehold owner in Queensland or a person who will, prior to completion of the comprehensive home building contract be the freehold owner of land in Queensland, to have a new home built on the land, if the contract commencement date is between 4 June 2020 and 31 March 2021 (both dates inclusive), and the construction commencement date is on or after the contract commencement date and within 6 months of the contract commencement date.[22]
- [41]A transaction is not an eligible transaction if the respondent is satisfied the contract forms part of a scheme to circumvent limitations on, or requirements affecting, eligibility or entitlement to the grant for an eligible transaction.[23] Unless satisfied to the contrary, the respondent must presume the existence of a scheme under paragraph 9 if the parties to the contract have not dealt with each other at arm’s length.[24]
- [42]Paragraph 11 is couched in mandatory terms. In other words, if the parties to the contract have not dealt with each other at arm’s length, the respondent must presume the existence of a scheme.
- [43]There have been many decisions of the courts and tribunals on the meaning of the terms ‘arm’s length’ and ‘arm’s length transaction’. In Granby Pty Ltd v The Commissioner of Taxation of the Commonwealth of Australia, a decision referred to by Ms Spottiswood, Lee J said:
20.... the term “at arm’s length” means, at least, that the parties to a transaction have acted severally and independently in forming their bargain. Whether parties not at arm’s length have dealt with each other at arm’s length will be a matter of fact. As Hill J stated in [The Trustee for the Estate of the late A.W. Furse No 5 Will Trust v. Federal Commissioner of Taxation[25]], determination of the manner in which parties not at arm’s length have dealt with each other requires “an assessment whether in respect of that dealing they dealt with each other as arm’s length parties would normally do, so that the outcome of their dealing is a matter of real bargaining”.
21.If the parties to the transaction are at arm’s length it will follow, usually, that the parties will have dealt with each other at arm’s length. That is, the separate minds and wills of the parties will be applied to the bargaining process whatever the outcome of the bargain may be.
(Emphasis added)
- [44]In Federal Commissioner of Taxation v AXA Asia Pacific Holdings Ltd[26], a decision of the Full Court of the Federal Court of Australia, Edmonds and Gordon JJ observed:
Any assessment of whether parties were dealing at arm’s length involves “an assessment [of] whether in respect of that dealing they dealt with each other as arm’s length parties would normally do, so that the outcome of their dealing is a matter of real bargaining”: Trustee for the Estate of the late AW Furse No 5 Will Trust v Federal Commissioner of Taxation (1991) 21 ATR 1123 at 1132 per Hill J. The reference in Furse 21 ATR 1123 to “real bargaining” is significant. It focuses on actual dealing between the parties: see also Re Hains (deceased); Barnsdall v Federal Commissioner of Taxation (1988) 81 ALR 173. That is not surprising. It is the same mental process as that described by Griffith CJ in Spencer v The Commonwealth (1907) 5 CLR 418 at 432.
The question of whether parties dealt with each other at arm’s length in respect of a particular dealing is one of fact in each case: Granby v Federal Commissioner of Taxation (1995) 129 ALR 503 at 507. What is required is that “parties to a transaction have acted severally and independently in forming their bargain”: Granby 129 ALR 503 at 507. Put another way, it requires consideration of how “unrelated parties, each acting in his or her own best interest, would carry out a particular transaction”: Australian Trade Commission v WA Meat Exports Pty Ltd (1987) 75 ALR 287 at 291.[27]
- [45]A dealing at arm’s length, the decided cases establish, is a dealing in which independent parties deal with each other acting in their individual self-interest.[28] It is usually understood as requiring consideration of whether parties are “at” arm’s length (independent/unrelated) and also whether the parties “dealt” with each other at arm’s length whether or not they were related.[29]
- [46]At the relevant time, the applicant had a relevant interest in the land. She was the sole director and secretary of Intrinsic and a shareholder in Intrinsic. Also, she was the nominated builder for Intrinsic and guaranteed the performance of the terms and conditions of the contract by herself.
- [47]The applicant and Intrinsic were related at the time of negotiating and entering the contract. I am satisfied the parties to the contract have not dealt with each other at arm’s length and so find. There is no satisfactory evidence they did so.
- [48]It follows I must presume the existence of a scheme under paragraph 9 of the Administrative Direction unless satisfied to the contrary. There is no satisfactory evidence to the contrary and, hence, the transaction is not an eligible transaction for payment of the grant.
Issue three
- [49]Having concluded the transaction is not an eligible transaction for payment of the grant, it is unnecessary to decide issue three. For the sake of completeness, and in case I am wrong, I have done so.
- [50]It is submitted by the respondent the contract is not a comprehensive home building contract within the meaning of paragraph 15 of the Administrative Direction because of the excluded items. A comprehensive home building contract, as has been said, is defined as, “... a contract under which a builder undertakes to build a home from the start of the building work to the point where the home is ready for occupation and, if for any reason, the work to be carried out under the contract is not completed, includes any further contract under which the work is to be completed.”
- [51]The work excluded from the quotation provided by Intrinsic to the applicant is:
- kitchen cabinetry and fixtures;
- proposed 12000 x 6000 carport;
- proposed tanks (x3);
- proposed 12000 x 9000 shed;
- air conditioning system complete;
- fencing or landscaping; and
- solar photovoltaic system.
- [52]The excluded work is repeated in schedule 4 to the contract, preceded by the following:
The owner acknowledges that the cost of the supply and/or installation of materials, goods or the provision of the labour or services that are listed below are not included in the contract price. The owner may be supplying these items or having other contractors do the work.
- [53]The issue was considered by the Appeal Tribunal (Judicial Member Forrest SC) in Commissioner of State Revenue v Taske[30]. There, the home-owner separately contracted with a third party to supply and install tiling and waterproof wet areas of the home during construction. They did so because the builder of the home was unable to supply the tiles selected by the home-owner. The home-owner applied for the grant but was refused on the ground the contract with the builder was not a comprehensive home building contract because it excluded the work mentioned. The home-owner applied for review and was successful. The decision on appeal, however, was reversed.
- [54]Judicial Member Forrest held the Tribunal at first instance erred in finding that because the builder was responsible for the work of the other contractor under the QBCC Act was sufficient to bring the construction of the home within one contract. At [24], he says:
As the applicant submits, and I accept, this requirement [the requirement the consideration for the transaction and the unencumbered value of the land not exceed $750,000.00] is consistent with a reading of the definition of comprehensive home building contract that requires all of the works for the building of the home to completion to be under that one contract. If it was otherwise, the $750,000.00 cap that is prescribed in the Direction would easily be rendered ineffective by owners simply having various works performed outside of the contract and thereby not considered to be subject to the monetary limit. That clearly is not what was intended. (Emphasis added)
- [55]
... conclusively decided that where a home owner contracts with a third party to undertake an essential part of the building work, the home owner falls foul of the definition [of comprehensive home building contract]. (Emphasis added)
The qualification mentioned, the contract with the third party be for an essential part of the building work, is not a qualification found in the decision. The decision, as I understand it, is authority for the view the definition of comprehensive home building contract requires all of the works for the building of the home to completion be under that one contract.
- [56]Even if the decision might be distinguished so as to permit a home-owner to contract with a third party for a non-essential part of the building work, here at least part of the excluded work, the kitchen cabinetry, and fixtures, was an essential part of the building work. It follows the contract was not a comprehensive home building contract within the meaning of paragraph 15 of the Administrative Direction and, hence, the transaction is not an eligible transaction for payment of the grant.
Decision
- [57]I am satisfied the transaction is not an eligible transaction and the contract is not a comprehensive home building contract within the meaning of paragraph 15 of the Administrative Direction. It follows the decision of the respondent made 8 December 2021 to confirm the decision of the respondent made 19 July 2021 to refuse an application by the applicant made 18 December 2020 for a first home owner grant must be confirmed.
- [58]The respondent submits the parties should bear their respective costs. I agree. There will be no order in relation to costs.
Footnotes
[1] Paragraphs [31] - [44] of these reasons for decision.
[2] Section 25Q(1) of the FHOG Act.
[3] Section 25Q(2) of the FHOG Act.
[4] Section 25Q(3) of the FHOG Act.
[5] Section 25Q(5) of the FHOG Act.
[6] [2005] NSWSC 267, at [456] – [458].
[7] [1995] FCA 1217, at [20] – [21].
[8] [2019] FCA 1897, at [225] – [227].
[9] Page 108 of the section 21(2) documents.
[10] Page 113 of the section 21(2) documents.
[11] Page 149 of the section 21(2) documents.
[12] Pages 67 - 74 of the section 21(2) documents.
[13] [2022] QCAT 297, at [34].
[14] [2015] QCAT 222.
[15] [2022] QCAT 416.
[16] See Commissioner of State Revenue v Taske [2023] QCATA 121.
[17] Section 60(1) of the FHOG Act.
[18] Section 60(3) of the FHOG Act.
[19] [2014] QCAT 493.
[20] Ibid, at [20].
[21] Ibid, at [21].
[22] Paragraph 1(b) of the Administrative Direction.
[23] Paragraph 9 of the Administrative Direction.
[24] Paragraph 11 of the Administrative Direction.
[25] 91 ATC 4,007, at 4,015.
[26] [2010] FCAFC 134.
[27] Ibid, at [105] - [106].
[28] See, for example, Australian Trade Commission v WA Meat Exports Pty Ltd (1987) 75 ALR 287, per Beaumont, Wilcox and Burchett JJ at [13].
[29] Trustee for the Estate of the late AW Furse No 5 Will Trust v Federal Commissioner of Taxation (supra); Granby Pty Ltd v The Commissioner of Taxation of the Commonwealth of Australia (supra); Federal Commissioner of Taxation v BHP Billiton Ltd (2011) 244 CLR 325, at [60]. See also Wilson Transformer Company Pty Ltd v Anti-Dumping Review Panel [2022] FCAFC 4, per Thawley J at [107].
[30] (supra).
[31] [2023] QCAT 409.
[32] [2023] QCAT 413.