Peet v The Commissioner of State Revenue
[2023] QCAT 73
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- Unreported Judgment
- Peet v The Commissioner of State Revenue[2023] QCAT 73
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Peet v The Commissioner of State Revenue[2023] QCAT 73
Peet v The Commissioner of State Revenue[2023] QCAT 73
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Peet v The Commissioner of State Revenue [2023] QCAT 73 |
PARTIES: | Peet (applicant) v the commissioner of State Revenue (respondent) |
APPLICATION NO: | GAR599-21 |
MATTER TYPE: | General administrative review matters |
DELIVERED ON: | 1 March 2023 |
HEARING DATE: | 20 February 2023 |
HEARD AT: | Brisbane |
DECISION OF: | Member McVeigh |
ORDER: | The decision of the Commissioner of State Revenue dated 25 August 2021 that the transaction for which the grant is sought is not an eligible transaction is set aside and substituted for a decision that the applicant is eligible for payment of the HomeBuilder Grant under the First Home Owner Grant and Other Home Owner Grants Act 2000 (Qld). |
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – whether the applicant was entitled to the HomeBuilder Grant First Home Owner Grant and Other Home Owner Grants Act 2000 (Qld), Part 3B Equiticorp Finance Ltd (in liq) v Bank of New Zealand (1993) 32 NSWLR 50 Humble v Hunter (1842) 12 QB 310 Jasmin Solar Pty Ltd v Trina Solar Australia Pty Ltd [2015] FCA 1453 Smits v Cugola [2021] QSC 164 |
APPEARANCES & REPRESENTATION: | |
Applicant: | WGC Lawyers |
Respondent: | Mr D E Fawcett instructed by the respondent |
REASONS FOR DECISION
Context for the applicant
- [1]
- [2]
- [3]In 2019 the applicant and Mr Applin decided to renovate their home. They engaged Cameron Twittey (builder) of CMT Constructions FNQ to help plan the renovations.[4] During one of their early meetings, the applicant and Mr Applin informed the builder that the applicant was registered as the owner of the land but because Mr Applin dealt with building contracts day-to-day he would review and sign the contract and be the person that the builder would predominantly deal with throughout the renovation works.[5]
- [4]
- [5]
- [6]On 10 June 2020 the builder presented a Master Builders Association basic works contract (residential) to the applicant and Mr Applin for completion of the owner’s details.[8]
- [7]The plans prepared for the applicant and Mr Applin and the quotation addressed to the applicant and Mr Applin form part of the contract.[9] Clause 17 of the contract provides that the special conditions are express terms of the contract and prevail over the general conditions to the extent of any inconsistency.[10]
- [8]Mr Applin completed parts of the pre-printed contract form by:
- (a)writing his name, address, mobile telephone number and email in the box headed ‘item 1 Owner’;
- (b)putting a cross beside the ‘no’ box in answer to the question ‘is the Owner a resident owner’;
- (c)signing his name in the signature box ‘signed by, or for and on behalf of, the Owner(s)’.[11]
- (a)
- [9]That came as no surprise to the builder because during his meetings with the applicant and Mr Applin he had been informed that because Mr Applin was an engineer who dealt with building contracts day-to-day he would review and sign the contract and be the person he would predominantly deal with throughout the renovation works.[12]
- [10]
- [11]On 17 August 2020 the contract was varied by the addition of internal works described in a quote dated 12 August 2020.[15]
- [12]
- [13]The claim was reviewed. On 25 August 2021 the senior review officer confirmed the decision to refuse the grant of payment because:
the transaction for which the grant is sought is not an eligible transaction, namely Karen Peet as applicant and the freehold owner of [the property] was not a party to the substantial renovation contract as required.[18]
- [14]On 21 October 2021 the applicant filed an application to review that decision in this tribunal.
Context for the Commissioner
The National Partnership on HomeBuilder Scheme
- [15]In 2020 the Australian government and the Australian states and territories were concerned about falling demand in the residential construction sector due to the COVID-19 pandemic. The governments agreed to enter into a national partnership to establish a grant to support the residential construction sector.
- [16]On 4 June 2020 the Australian Government announced HomeBuilder. The stated purpose of HomeBuilder was to support the residential construction sector recover from the Coronavirus crisis. Relevantly, HomeBuilder was a $25,000 grant available to eligible owner-occupiers who entered into a contract, signed after 4 June 2020, to substantially renovate an existing home.
- [17]The Australian Government provided funding for the payment of the grant in accordance with guidelines it established. It was not until 30 July 2020 that the then Treasurer and Minister for Infrastructure and Planning approved an administrative direction to establish the basis for the administration of the grant in Queensland by the Commissioner of State Revenue.[19]
- [18]The Commissioner did not start to administer the scheme until 20 August 2020, the date that Part 3B of the First Home Owner Grant and Other Home Owner Grants Act 2000 (Qld) (Grants Act) received royal assent.
Eligibility under the Grants Act
- [19]An applicant for a home builder grant is entitled to be paid the grant if:
- (a)the applicant complies with the eligibility criteria for the grant under the home builder direction; and
- (b)the transaction for which the grant is sought is an eligible home builder transaction; and
- (c)the relevant requirement in relation to the eligible home builder transaction has been met.[20]
- (a)
- [20]Relevantly, the eligibility criteria for the grant under the home builder direction were:
- (a)the existence of a substantial renovation contract;
- with a contract commencement date between 4 June 2020 and 31 March 2021;
- with a construction commencement date on or after, but within 6 months of the contract commencement date;
- (b)
- (a)
Does the applicant meet the eligibility criteria?
- [21]The Commissioner decided that the applicant did not meet the criteria because she was not a party to the renovation contract. During the course of the hearing counsel for the Commissioner confirmed that there was no other basis for refusing the claim.
- [22]It is easy to understand why the applicant feels aggrieved. Despite the fact that the scheme was announced on 4 June 2020 and applied to contracts commencing on that date, the eligibility criteria were not published until 30 July 2020. As a consequence on 10 June 2020, the date the substantial renovation contract was signed, neither she nor Mr Applin could have foreseen that if her name was not written on the contract as the Owner, the Commissioner would refuse her claim for the grant.
- [23]The applicant argues that Mr Applin entered into the contract as her disclosed agent. She argues that for the purpose of the grant there should be no distinction between a contract entered into by the sole registered freehold owner of the land and a contract entered into by an agent of the sole registered freehold owner of the land.
Preliminary point
- [24]The Commissioner raised a preliminary point that the agency argument was only raised in legal submissions made on 28 January 2022. I accept the submission that no reference was made to agency in the contract or in the contemporaneous documents. I also accept that this was not surprising, but not for the reasons advanced. It was not surprising because the parties had had discussions about the contracting arrangements.
- [25]I reject the submission of counsel for the Commissioner that the timing of raising the agency argument should be regarded as evidence of the lack of an agency arrangement. The fact that the argument was not raised when the application was made or when the claim was reviewed explains the reason the original decision maker made the decision under review. However, it is no longer relevant in the context of this application.
- [26]I am not limited to the evidence before the Commissioner when the decision was made because on 11 July 2022 directions were made in the interest of justice pursuant to section 60 of Grants Act which:
- (a)extended the grounds on which the review application was made to include the submission that Mr Applin entered into the renovation contract as the disclosed agent of the applicant;
- (b)
- (a)
- [27]Accordingly, I must take account of the new evidence, applying the law at the time the original decision was made. The law of agency has not changed since 2021. My task is to apply the law to the facts.
Findings of fact
- [28]The Commissioner elected not to cross-examine the applicant, Mr Applin or the builder. This tribunal is not bound by the rules of evidence.[25] I am not persuaded that their evidence suffers from obvious deficiencies. This is not a criminal proceeding where something might be made of the similarities between the statements.
- [29]I accept their unchallenged evidence.
Legal principles
- [30]Counsel for the Commissioner helpfully identified numerous authorities in respect of the law of agency. Unfortunately, none of them was a judgement made in administrative review proceedings.
- [31]The long-standing de facto relationship between the applicant and Mr Applin does not give rise to a presumption that the applicant authorised Mr Applin to act as her agent. Material facts must be established to show that he acted for her.[26]
- [32]Equiticorp Finance Ltd (in liq) v Bank of New Zealand[27] was an appeal where one of the issues was the authority of the chairman, chief executive and major shareholder of a group of companies to commit the financial resources of the group of companies. The primary judge found that the chairman had actual authority. In upholding his decision, Clarke JA and Cripps JA observed:[28]
- (a)that actual authority may be express or implied;
- (b)that an agent may have actual authority to bind a principal which is quite distinct from, but may overlap, ostensible authority;
- (c)actual authority arises where there is a consensual agreement between the principal and agent;
- (d)notwithstanding the absence of an express agreement, the principal and agent may conduct themselves in such a way that it is proper to infer that the relevant authority has been conferred on the agent;
- (e)in many instances the circumstances which give rise to ostensible authority may also provide a basis for inferring an actual grant of authority.
- (a)
- [33]In Jasmin Solar Pty Ltd v Trina Solar Australia Pty Ltd (Jasmin Solar)[29] Edelman J surveyed the cases on the question of whether evidence of agency is admissible to contradict the express terms of an agreement. He observed that the principle from Humble v Hunter,[30] to the effect that evidence of authority of an outside principal is not admissible if to give such evidence would be to contradict the terms of the contract itself, has been followed on many occasions, but also doubted in modern cases which emphasise the importance of beneficial assumptions in commercial cases.[31] He observed that different cases have reached different results on similar facts and that context is very important.[32]
- [34]Jasmin Solar was an application for leave to serve proceedings out of Australia. The evidence before the court was of limited compass and was not the subject of cross-examination. Consequently, Edelman J expressed a very tentative preliminary view.[33] One of the factual circumstances he took into account in deciding that the applicant had not entered the agreement in question as an agent,[34] was the knowledge of the parties immediately prior to the making of the agreement in question.[35]
- [35]He emphasised that the use of the word ‘agent’, particularly by laypersons, does not necessarily connote that the legal consequences of genuine agency were intended. He observed that even when the term ‘agency’ is used by judges it is sometimes used in the sense other than to describe one party acting to bind another to contractual obligations.[36]
Did Mr Applin enter into the contract as the disclosed agent of registered proprietor?
- [36]Counsel for the Commissioner identified seven reasons there was insufficient evidence that the applicant authorised Mr Applin to enter into the contract on her behalf. I accept that it does not follow:
- (a)merely from the existence of their relationship, or having regard to the proportion of each person’s contribution, financial or otherwise, to their assets; or
- (b)because the applicant was the registered proprietor.
- (a)
- [37]However, I do not think that actions after the contract was formed bear on the question of the existence of the agency when the contract was made, which is the question I must determine. Things such as address and payment of invoices and the giving of instructions during the course of the work would have been relevant to a dispute between the parties but are not relevant to address the question before me. Had the question of agency arisen in the context of a dispute between the builder and Mr Applin, I am confident that the builder could have secured equitable relief on the basis that Mr Applin acted as the ostensible or apparent agent of the applicant.
- [38]In my view the circumstances which give rise to the possibility of finding ostensible authority had this been a dispute between the builder and Mr Applin also provide a basis for inferring an actual grant of authority.[37]
- [39]The Commissioner submitted that on its face the contract was inconsistent with Mr Applin signing as the applicant’s agent. The rule in Humble v Hunter that evidence of authority of an outside principal is not admissible if to give such evidence would be to contradict the terms of the contract itself is not a rule of inflexible application. As Edelman J noted, the rule has been doubted in modern cases which emphasise the importance of beneficial assumptions in commercial cases. Although this is not a commercial case, it is necessary to have regard to the public policy purpose for which HomeBuilder was established, i.e., to support the residential construction sector recover from the Coronavirus crisis.
- [40]I reject the submissions of counsel for the Commissioner that my consideration should be confined to the terms of the building contract. I adopt the finding of Edelman J that context is important. There is no suggestion that when Mr Applin completed and signed the contract he was on a frolic of his own. The evidence shows that:
- (a)the applicant and Mr Applin informed the builder that the applicant was registered as the owner of the land but that Mr Applin would sign the contract;[38]
- (b)the builder knew that Mr Applin would sign the contract and be the person with whom he would predominantly deal throughout the renovation works.[39]
- (a)
- [41]I am satisfied that the applicant and Mr Applin had disclosed to the builder that Mr Applin was authorised to sign the contract on behalf of the applicant. The words they used are not the key to determining the legal characterisation of the relationship.
- [42]My task is to produce the correct and preferrable decision. I am satisfied that the applicant freehold owner of a home in Queensland, by her disclosed agent Gregory Applin, entered into a substantial renovation contract with a contract commencement date after 4 June 2020 and with a construction commencement date within 6 months of the contract commencement date. Accordingly, the Commissioner’s decision should be set aside and substituted with a decision that the applicant is eligible for the grant.
Footnotes
[1] Exhibit 1 [2].
[2] Section 21 bundle of documents p 39.
[3] Exhibit 1 [3].
[4] Exhibit 3 [2].
[5] Exhibit 1 [6].
[6] Section 21 bundle of documents p 49-52.
[7] Section 21 bundle of documents p 53-57.
[8] Exhibit 3 [6].
[9] Section 21 bundle of documents p 41.
[10] Section 21 bundle of documents p 47.
[11] Section 21 bundle of documents p 43.
[12] Exhibit 3 [4].
[13] Section 21 bundle of documents p 63-66.
[14] Exhibit 1 [13].
[15] Section 21 bundle of documents p 88-89.
[16] Section 21 bundle of documents p 33-35.
[17] Section 21 bundle of documents p 28.
[18] Section 21 bundle of documents p 1.
[19] Section 21 bundle of documents p 141.
[20] Sec 25Q(3) First Home Owner Grant and Other Home Owner Grants Act 2000 (Qld)
[21] Administrative Direction [1(c)].
[22] Exhibit 1.
[23] Exhibit 2.
[24] Exhibit 3.
[25] Sec 28(3)(b) QCAT Act.
[26] Smits v Cugola [2021] QSC 164.
[27] (1993) 32 NSWLR 50.
[28] At p 132.
[29] [2015] FCA 1453.
[30] (1842) 12 QB 310.
[31] At [129].
[32] At [133].
[33] At [108].
[34] At [141].
[35] At [140].
[36] At [139].
[37] See Equiticorp Finance Ltd (in liq) v Bank of New Zealand.
[38] Exhibit 1 [6].
[39] Exhibit 3 [4].