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Conomos v Commissioner of State Revenue[2024] QCAT 372

Conomos v Commissioner of State Revenue[2024] QCAT 372

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Conomos v Commissioner of State Revenue [2024] QCAT 372

PARTIES:

Gary Peter Conomos

(applicant)

v

Commissioner of state revenue

(respondent)

APPLICATION NO/S:

GAR818-23

MATTER TYPE:

General administrative review matters

DELIVERED ON:

3 September 2024

HEARING DATE:

On the papers Hearing

HEARD AT:

Brisbane

DECISION OF:

A/Member D Brown

ORDERS:

  1. The Commissioner’s decision of 15 September 2023 is set aside.
  2. Mr Conomos is to be paid the HomeBuilder Grant of $25,000.
  3. Mr Conomos is to file in the Tribunal and provide the Commissioner of State Revenue a copy of any application for costs supported by evidence and written submissions by 4:00 pm on 18 September 2024.
  4. The Commissioner of State Revenue is to provide any response to Mr Conomos application for costs by 4:00pm on 2 October 2024.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – review of decision to refuse payment of HomeBuilder Grant where an application for a HomeBuilder grant has been made to the Commissioner pursuant to provisions of the First Homeowner Grant and Other Home Owner Grants Act 2000 (Qld), whether Mr Conomos was entitled to the HomeBuilder Grant, whether satisfied the residency condition, whether good reason to exempt applicant from the residence requirements.

Acts Interpretation Act 1954 (Qld)

First Homeowner Grant and Other Homeowner Grants Act 2000 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Administrative Direction – Australian Government HomeBuilder Grant Queensland 1 March 2021

National Partnership Agreement on Homebuilder

Phillips v Commissioner of State Revenue [2023] QCAT 426

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

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Applicant:

Plastiras Lawyers

Respondent:

C Maxia, Senior Review Officer

REASONS FOR DECISION

  1. [1]
    On 15 September 2023 the Delegate of the Commissioner for State Revenue (‘the Commissioner’) notified Mr Gary Conomos that their application for a HomeBuilder Grant was refused.
  2. [2]
    The basis of the Commissioner’s refusal was that Mr Conomos did not satisfy the six month residency requirement in Criterion 6 of the Administrative Direction – Australian Government HomeBuilder Grant – Queensland (‘HomeBuilder directions’) due to the property being subdivided during the construction and the Lot number and property description changing between the time the renovation contract was signed and the date the renovation was completed.
  3. [3]
    On 16 November 2023[1] Mr Conomos filed in the Tribunal an application to review the decision made by the Commissioner on 15 September 2023.

Background facts

  1. [4]
    Mr Conomos is the registered owner of a property situated at 440 Boundary Road, Dakabin (‘the property’). Mr Conomos purchased the property in April 1983 and has resided in the home on that property since April 1983 and continues to remain living in the home at the property. The property was described as Lot 12 RP185104 at the time of purchase.[2]
  2. [5]
    On 30 December 2020[3] Mr Conomos entered into a Level 2 Renovation, extension and repair building contract with a builder (Trung Hieu Nguyen) to carry out substantial renovations of the home. The total contract price was $188,100 and the renovation works related to the home only, not the surrounding block of land.[4]
  3. [6]
    The builder started the renovation works on 19 March 2021.[5] The last payment Mr Conomos made to the builder was paid on 11 March 2022.
  4. [7]
    On 26 May 2021, the property was subdivided into two blocks (lots 120 and 123). The home on the property in which Mr Conomos was renovating was on lot 120. The property descriptions changed to Lot 120 SP304455 and the title reference for Lot 12 RP185104 was cancelled.[6]
  5. [8]
    On 9 June 2021 Mr Conomos made the HomeBuilder Grant Application the subject of this proceeding to obtain a grant for substantial renovation works to his property.[7]
  6. [9]
    On 8 February 2022, the property at Lot 120 SP304455 was further subdivided into Lots 121 and 122. The home on the property in which Mr Conomos was renovating was on Lot 122. The property descriptions changed to Lot 122 on SP 313759, and the title reference for Lot 120 SP304455 was cancelled.[8]
  7. [10]
    Mr Conomos has sold Lots 121 and 123. He remains the registered owner of Lot 122.
  8. [11]
    On 24 August 2024 the Commissioner decided to refuse the payment of the Grant.[9]  Mr Conomos sought an internal review of the decision on 17 October 2022.[10] The decision was confirmed in an internal review on 15 September 2023.[11]
  9. [12]
    On 16 November 2023 Mr Conomos filed an application to review the decision pursuant to section 59 of First Homeowner Grant and Other Home Owner Grant Act 2000 (Qld) (‘FHOG Act’).

Legislation and HomeBuilder Grant Scheme

  1. [13]
    The tribunal has jurisdiction to review the decision pursuant to section 59 of the FHOG Act which provides that a person who is dissatisfied with the Commissioner’s decision may apply within 60 days after receiving notice of the decision to QCAT for a review of the decision. There was some dispute over the date the application for review was filed by Mr Conomos. However, on 27 February 2024 the tribunal directed that the time for filing the application to review a decision is extended to 16 November 2023 which resolved the issue. Accordingly I am satisfied that the tribunal has jurisdiction to determine this matter.
  2. [14]
    Pursuant to s 60(2)(a) of the FHOG Act the tribunal must hear and decide the review by way of a reconsideration of the evidence that was before the Commissioner when the decision was made unless the Tribunal considers that it is necessary in the interests of justice to allow new evidence. No new evidence was allowed or provided in this matter.
  3. [15]
    Pursuant to s 20(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) the purpose of the review is to produce the correct and preferable decision. The tribunal can confirm or amend the decision, set aside the decision, and substitute its own decision, or set aside the decision and return it to the Commissioner for reconsideration.[12]
  4. [16]
    The home builder grant provided a one-off payment to eligible applicants who built a new home under a contract signed between 4 June 2020 and 31 March 2021.  Sections 25O to 25W of the FHOG Act deal with the home builder’s grant.  Section 25Q deals with the application and when a grant is payable and states:

25Q Application for grant and when grant is payable.

  1. A person who is eligible to apply for a home builder grant under the home builder direction may apply for the grant.
  1. An application for a home builder grant must comply with the home builder direction.
  1. An applicant for a home builder grant is entitled to be paid the grant if—
  1. the applicant or, for a joint application, each of the applicants, complies with the eligibility criteria for the grant under the home builder direction; and
  1. the transaction for which the grant is sought is an eligible home builder transaction; and
  1. the relevant requirement in relation to the eligible home builder transaction has been met.
  1. [17]
    The HomeBuilder directions establish the basis for the administration of the grant in Queensland by the Commissioner and his delegates and set out what transactions are eligible, the eligibility criteria for applications, how to apply for the grant, and payment of the grant.
  2. [18]
    Section 1(c) of the HomeBuilder directions state that the following transaction is an eligible transaction for payment of the grant:

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.

  1. [19]
    A substantial renovation contract is defined as:[13]
    1. a contract for the renovation of an existing dwelling which substantially alters the existing dwelling and improves the accessibility or safety or liveability of the property (although this need not involve the removal or replacement of foundations, external walls, interior walls, floors, roofs or staircases); or
    2. a contract for the demolition of the existing home and building of a new home on the land; or
    3. a contract for the building of a new home on the land which replaces a pre-existing home on the land that was demolished under a separate contract entered into by Mr Conomos (the separate contract) and.
    4. for each contract mentioned in subparagraphs a, b or c, if for any reason the work carried out under the contract is not completed, includes any further contract under which the work is to be completed.
  2. [20]
    There are value caps for eligible transactions and section 4 of the HomeBuilder directions states that a transaction that is a substantial renovation contract is not an eligible transaction if either or both apply:
    1. the consideration is less than $150,000 or more than $750,000;
    2. the unencumbered value of the land inclusive of all structures, fixtures and improvements is:
      1. for a substantial renovation contract mentioned in paragraphs 19.a. and b. – before the construction commencement date, more than $1,500,000; or
      2. for a substantial renovation contract mentioned in paragraph 19.c. – before the existing home was demolished under the separate contract, more than $1,500,000.
  3. [21]
    The HomeBuilder directions set out the eligibility criteria for applicants. There are six criteria which require:[14]
    1. The applicant/s to be the registered freehold owner of the property:
    2. The applicant/s must be a natural person and at least 18 years of age:
    3. The applicant/s must be Australian citizens;
    4. The applicant/s must not have received an earlier grant;
    5. The applicant/s must meet the income test which is less than $125,000 for a single applicant and $200,000 for joint applicants.
    6. The applicant/s must meet the residency requirements and occupy the home to which the application related for a period of 6 months.
  4. [22]
    The freehold owner requirement for substantial renovation contracts requires that the applicant must be the sole registered freehold owner of the property as at the contract commencement date.[15] The term “property” is not defined in the FHOG Act or the HomeBuilder directions.
  5. [23]
    The residency criteria require that:[16]

Upon completion of an eligible transaction, the applicant or if there are joint applicants – both applicants, must occupy the home to which the application relates as their principal place of residence for a continuous period of 6 months.

  1. [24]
    However, if the Commissioner is satisfied there are good reasons to do so, the Commissioner may, at any time:
    1. approve a shorter period for the residence requirements of an applicant under paragraph 34; or
    2. exempt an applicant from complying with the residence requirements under paragraph 34.[17]
  2. [25]
    A home is defined as a building, fixed to land, that:
    1. may lawfully be used as a place of residence; and
    2. is a suitable building for use as a place of residence.[18]
  3. [26]
    Sections 37-40 of the HomeBuilder directions provide for the process of making an application for a grant. Section 41 provides that a grant is payable on an application under this HomeBuilder direction if:
    1. the applicant or, if there are joint applicants – both applicants, comply with the eligibility criteria; and
    2. the transaction for which the grant is sought is an eligible transaction; and
    3. for an eligible transaction that is a contract for the purchase of a new home – when the contract has been completed; or
    4. subject to paragraphs 42 and 43, for an eligible transaction that is a comprehensive home building contract – when the foundations have been laid and the first progress payment has been paid to the builder; or
    5. for an eligible transaction that is a substantial renovation contract – after construction has commenced and at least $150,000 of the contract price has been paid to the builder.
  4. [27]
    Section 45 of the HomeBuilder directions and section 25S of the FHOG Act confirm that the amount of the HomeBuilder grant is:
    1. if the contract commencement date for an eligible transaction is between 4 June 2020 and 31 December 2020 (both dates inclusive) - $25,000; or
    2. if the contract commencement date for an eligible transaction is between 1 January 2021 and 31 March 2021 (both dates inclusive) - $15,000.

Does Mr Conomos meet the eligibility criteria?

Evidence

  1. [28]
    The material filed in the proceedings and considered by the tribunal in determining the matter is:
    1. The application to review a decision filed on 16 November 2023.
    2. The documents numbered 1-61 provided by the Commissioner pursuant to section 21 of the QCAT Act (the ‘s 21 material’).
    3. Mr Conomos’ submissions filed 15 April 2024.
    4. The letter from the Commissioner dated 3 June 2024.
  2. [29]
    Despite requestion an extension for the filing of submissions until 3 June 2024, which was granted by the tribunal, the Commissioner did not file any submissions and simply advised that they rely on the objection decision dated 15 September 2023 as their preliminary submissions. 
  3. [30]
    The position taken by the Commissioner is not entirely consistent with the obligations under s 21(1) of the QCAT Act for the Commissioner as the decision-maker to use their best endeavours to help the tribunal so that it can make its decision on review.

Issues in dispute

  1. [31]
    The following facts appear to be uncontested:
    1. Mr Conomos entered into a Level 2 Renovation, extension and repair building contract with a builder to carry out substantial renovations on his home. The contract meets the definition of substantial renovation contract, and the consideration and unencumbered land value are within the eligible range and therefore the transaction for which the grant is sought is an eligible transaction.
    2. Mr Conomos meets eligibility criteria 1 to 5 in that he was the sole registered freehold owner of the property as at the contract commencement date; he is a natural person who is over 18 and an Australian citizen; he has not received an earlier grant; and he meets the income test. 
    3. Mr Conomos has paid over $150,000 of the contract price to the builder as required by s 41(e) of the HomeBuilder directions.
    4. Mr Conomos has lived in the same home since April 1983, and while the property size has reduced due to subdividing the property, the physical location of the home has remained unchanged and the street address for the property has continued to be 440 Boundary Road, Dakabin, Qld 4503 throughout this period.
    5. The lot and plan numbers for the property on which Mr Conomos’ home is situated changed during the renovation contract from Lot 12 RP185104 to Lot 120 SP304455 and then to Lot 122 on SP 313759.
    6. Mr Conomos subdivided the property during the renovation contract and has sold two lots, being Lot 121 and Lot 123. However, he has retained ownership as the sole registered owner of the Lot 122 with the renovated home on it.

The only issue

  1. [32]
    The only issue in dispute appears to be whether Mr Conomos has met the residence requirements in Criterion 6, in that did Mr Conomos “occupy the home to which the application relates as their principal place of residence for a continuous period of 6 months” and if not, should the Commissioner have exercised their discretion under s 35 of the HomeBuilder directions.
  2. [33]
    There is no suggestion that Mr Conomos was not living at his home at 440 Boundary Road, Dakabin for a continuous period of 6 months after the renovation contract was completed. The question for determination was whether this was “the home to which the application relates” given the subdivision of the property after the contract commenced but before the renovations were completed.
  3. [34]
    The Commissioner refused the application on the basis that Mr Conomos not satisfying the residency criteria as:
    1. The eligibility of the grant must be determined using the original property description, being Lot 12 on RP 85104, as this was the description of the land at the time Mr Conomos entered the contract to renovate the pre-existing home on 30 December 2020 which was the basis of the Homebuilder application.
    2. For a substantial renovation contract the HomeBuilder directions require an applicant to be the registered freehold owner of the property and land.[19] Registered freehold ownership of property or land is determined by reference to the land title registration with the Land Titles Office, rather than the street address. The same land title is required to be valued for the purpose of determining compliance with the value cap before commencement of construction.
    3. The six-month residency requirement in Criterion 6 relates to the house fixed to the land title, as described, at the time the applicant entered the contract. If, during the six-month residency period, the home is located on land title that differs from that at the time the applicant entered the contract, it is no longer possible to satisfy the residency requirements as the home the applicant is occupying is not the home “to which the application relates”.
    4. The home to which the application relates was the home affixed to Lot 12 on RP 185104. From 29 May 2021 Lot 12 on RP185104 no longer existed. Therefore Mr Conomos is unable to satisfy the six-month residency requirement in Criterion 6.
  4. [35]
    Mr Conomos disputes that the home at 440 Boundary Road, Dakabin in which he has continuously resided as his place of residence is not “the home to which the application relates”. Mr Conomos submits that:
    1. Nothing in the original decision of the HomeBuilder directions specifies the eligibility for a grant depends on using the original property description as at the date of the renovation contract.
    2. Criterion 6 requires an applicant to occupy the home for a period of 6 months after building wok is completes. Home is defined as to be a building not the original property description as the Commissioner asserts.
    3. The Commissioner has interpreted the requirement to be “a freehold owner of a home” incorrectly in that it refers to owning a home not to the specific land title.
    4. The words ‘land’ and ‘property’ are not defined in the HomeBuilder directions and have a wider meaning than the Commissioner allowed, when you reference section 7 of the FHOG Act which discuss a person with a relevant interest in the land.
    5. There is nothing in the HomeBuilder directions that prevents the title description changing during the course of the transaction. The critical time of ownership under the HomeBuilder directions is at the time of contract commencement, which was complied with.
    6. It is possible to occupy a “home” continuously irrespective of some parts of the land around it being subdivided and sold, because this is what Mr Conomos has in fact done. The Commissioner’s interpretation gives no regard to the actual physical reality of what has occurred.
    7. The Commissioner did not exercise their discretion under s 35 to waive the residence requirement and should have exercised it in Mr Conomos’ favour by finding there was good reason to waive the requirement.
  5. [36]
    In the application notes provided in the Commissioner’s s 21 material[20]  which details the initial consideration of the matter, the delegate of the Commissioner applied the wrong test. The notes state that:

…The renovation upon completion is on the newly created lot 122, while Lot 121 and 123 have since been sold. This means that the grant property has been disposed of (two thirds of it is no longer in their possession) and the application cannot be approved as they cannot meet the residence requirement on the property that is the subject of the grant.

  1. [37]
    There is no requirement to meet the residence requirement on the property. The requirement is that they must occupy the home to which the application relates, not the property.
  2. [38]
    The subdivision of the property by Mr Conomos does not invalidate his eligibility for any of the other criteria for the home builder grant. As such, the fact that two thirds of the property may no longer be owned by Mr Conomos at the end of the construction period does not affect any other eligibility criteria and is not an appropriate consideration.
  3. [39]
    The word “home” is defined as “a building, fixed to land, that may lawfully be used as a place of residence and is a suitable building for use as a place of residence.” As such it is the building, not the land itself, which must be occupied for the six months after construction.
  4. [40]
    It does not appear to be in dispute that Mr Conomos occurred the home at the property at 440 Boundary Road, Dakabin as his principal place of residence for a continuous period of six months and this was the home upon which the construction occurred.
  5. [41]
    The question in dispute is therefore whether the home on the property at 440 Boundary Road, Dakabin in which Mr Conomos resides is “the home to which the application relates”.
  6. [42]
    In seeking to interpret the meaning of “the home to which the application relates” section 14A of the Acts Interpretation Act 1954 (Qld) provides guidance and notes that in the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation.
  7. [43]
    Adopting the position in Scott-Holland v Commissioner of State Revenue[21] when interpreting legislation, the following general principles apply:
    1. Words should be given their plain and ordinary meaning unless:
      1. a contrary intention is shown;[22] or
      2. that would lead to an absurdity.[23]
    2. While words should be given their widest and natural meaning, where there is doubt, the context and subject matter of a word may limit its meaning;[24]
    3. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy;[25] and
    4. The context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed;[26] and
    5. When interpreting a provision, the interpretation that will best achieve the purpose of the Act is to be preferred.[27]
  8. [44]
    The home builder grant arose out of an agreement between the Commonwealth and the States, referred to as the National Partnership on Homebuilder (‘National Partnership Agreement’) that recognised the mutual interest of the Commonwealth and the States in supporting the residential construction sector to recover from the COVID-19 crisis.[28]
  9. [45]
    The objectives of the agreement included to provide financial assistance to eligible owner-occupiers with the intent of increasing residential construction activity and maintaining direct and indirect residential construction jobs.[29]
  10. [46]
    The agreement was to facilitate achievement of the outcome to drive demand for new homes and substantial renovations, supporting increased residential construction activity and boost confidence in the residential construction sector to help Australia’s residential construction sector recover from the coronavirus crisis; and assist eligible owner-occupiers seeking to build a new home or substantially renovate an existing home.[30]
  11. [47]
    Mr Conomos’ actions of subdividing his property, therefore creating more land tax and income for the state and creating two new properties which will require new houses to be built on them, would appear to align with the objective and contribute to the intended outcomes. Therefore a wide definition of “home to which the application relates” would be in line with general purpose and policy of the home builders grant.
  12. [48]
    The principles for application eligibility in the National Partnership Agreement include that an eligible owner-occupier will be the natural person who has the certificate of title of the property and resides or intends to reside at the property.
  13. [49]
    Unlike in the HomeBuilder directions, which require an applicant to be the registered freehold owner as at the commencement date of the contract, there is no specific time period in the National Partnership Agreement when it is required that Mr Conomos is to provide evidence that he is listed on the certificate of title of the property. The National Partnership Agreement does not appear to prohibit or restrict the title details changing during the application; the only requirement is that the applicant/owner-occupier continues to be listed on the title.
  14. [50]
    In a strict reading of the HomeBuilder directions, the only time that is required for evidence to be provided to demonstrate an applicant is the registered owner on the title is Criterion 1 (a & b) which in the case of a substantial renovation contract is at the contract commencement date. There is no dispute that Mr Conomos was the registered owner of the property at the commencement date of the contract, which was prior to the subdivision of the property.
  15. [51]
    Had it been the legislative intent for there to be a requirement that this land description be used as the identification of the home throughout the application including for the residence requirement, then one would have expected the language used to be consistent and require an applicant to occupy the home for which they were the freehold owner at the commencement date of the contract. This is not the language used and instead the HomeBuilder directive references the home the subject of the application (meaning the application for the home builder grant). As such this means there can be situations akin to Mr Conomos’ situation where the title description of the land, at the time of the contract commencement, is not the same as the title description of the land at the time the application for a grant is lodged.
  16. [52]
    In considering the term “to which the application related” it is necessary to review the application form. This provides little assistance as it is noted that under the heading “details of grant property” both the title details and the property address are requested, and it is not distinguishable which is considered the more important detail for identification of the home. It is noted that in the decision and statement of reasons provided by the Commissioner, the relevant property is noted as 440 Boundary Road: Dakabin and the details are only included in a foot note. However significant weight has not been placed on this description.
  17. [53]
    In considering the term “to which the application related”, it is also necessary to consider what the application is. In this case it is an application for a home builder grant for a substantial renovation contract made by the freehold owner of a home. It is noted that this is different to the eligibility for some of the other grants which requires the applicant to be the freehold owner of the land.
  18. [54]
    Like the application for the grant, under the site details, the renovation contract required both the site address and the real property description. It is noted however that when the real property address changed during the period of the contract, this did not invalidate the contract and the construction continued on the home on the site address of 440 Boundary Road, Dakabin, despite the real property details changing.
  19. [55]
    It follows that if the home the subject of the application was the home to which the substantial renovation contract applied, therefore given the renovations occurred to the home at 440 Boundary Road, Dakabin, not the home on Lot 12 RP185104, which ceased to exist shortly after renovations commenced, then Mr Conomos’ interpretation of the definition of “home the subject of the application” must be preferred.
  20. [56]
    Respectfully, I find that adopting the Commissioner’s narrow interpretation of the definition of “the home to which the application relates” requiring the residence requirement be linked to the title description of the property at the time of contract commencement date, would create:
    1. absurdity, namely,
      1. as in Mr Conomos’ case the title details of the home at the time of the application being submitted are not considered the title details of the home the subject of the application, if the land has been subdivided between the time of the contract commencement date and the time the homeowner submits the application for a grant; and
      2. as in Mr Conomos’ case, inequitable treatment of owners of homes in which they have resided in for many years and continue to do, deemed to not be residing in them due to subdividing their land, despite the house location and street address remaining unchanged and
    2. the unintended exclusion of owner-occupiers who renovate their home and subdivide a property at the same time, thereby creating more land on which people can build on, from receiving the very grants that were introduced to stimulate the building industry in the first place, contrary to the purpose and intent of the policy that introduced the grant,
  21. [57]
    Accordingly the tribunal does not agree that the definition of “the home to which the application relates” requires it to be the home upon the same legal title as at the contract commencement date.  The home to which the application relates is the home to which the contract for the eligible transaction (which in this case is the substantial renovation contact) relates. In most cases this will be the same as the home on the title description of the property at the time of the contract commencement date, but that is not a mandatory requirement.
  22. [58]
    In this case, the home to which the contract relates, and in which was renovated, is the home at the street address of 440 Boundary Road, Dakabin. A real property address cannot be used to define the home in this case as it changed between the start and end of the contract and between the time the application for a grant was lodged and when the application was determined was determined. However this did not invalidate or breach the contract and the substantial renovation continued. The street address remained consistent during the contract, and therefore, in this case, that is how to identify the home to which the application relates.
  23. [59]
    Accordingly, as the home to which the application relates in this matter is the home at the property address of 440 Boundary Road, Dakabin, the tribunal is satisfied that Mr Conomos did occupy the home to which the application relates as his principal place of residence for a continuous period of six months upon the completion of the substantial renovation contract. 

Exercise of discretion under s 35

  1. [60]
    Even if the tribunal is wrong about the interpretation of the residence requirement under s 34 of the HomeBuilder directions and it was found Mr Conomos did not meet the residence requirement, consideration still needs to be given to s 35 of the HomeBuilder directions which states that:

If the Commissioner is satisfied there are good reasons to do so, the Commissioner may, at any time:

  1. approve a shorter period for the residence requirements of an applicant under paragraph 34; or
  1. exempt an applicant from complying with the residence requirements under paragraph.
  1. [61]
    Section 9(c) of the QCAT Act confirms that the tribunal has all the functions of the decision-maker for the reviewable decision being reviewed. Accordingly the tribunal needs to consider whether the is good reasons to exempt an applicant from complying with the residence requirement.
  2. [62]
    Mr Conomos submits that the discretion should be exercised to waive the residence requirement.[31] The Commissioner provided no submissions on the issue.
  3. [63]
    While the purpose of this application is not to determine whether the Commissioner fell into error but to reach the correct and preferable decision, it is noted that the Commissioner did not identify that it had considered the discretion under section 35 to shorten the time period of the residence requirements or exempt Mr Conomos from complying with the residence requirement.  
  4. [64]
    Section 35 is not mentioned in either the original decision or the decision dated 15 September 2023, which is the decision being reviewed. It would appear, considering both decision letters and the notes on the application which provides details of the initial decision making,[32] the Commissioner had not turned its mind to the provisions of s 35.
  5. [65]
    Paragraph 18 of the decision letter date 15 September 2023 states

It follows, for the reasons set out above, you did not satisfy the six month residency requirement in Criterion 6 of the home builder decision and therefore you are not entitled to payment of the grant.

  1. [66]
    This is not a correct statement of the law. Even if it was found that Mr Conomos did not meet the residence requirement, is does not follow that he is therefore not entitled to the grant. The correct statement of the law is that “…therefore, unless there is good reason to exempt you from complying with the residence requirement, you are not entitled to payment of the grant”. 
  2. [67]
    Generally speaking, in exercising the discretion, one must weigh matters for and against, often described as matters of fault or error against matters of exculpation.[33]
  3. [68]
    There is not real fault or error that can be attributed to Mr Conomos. However, an argument again providing an exemption to Mr Conomos is that the State has limited resources and that there need to be limitations on grants and if an applicant does not comply with an eligibility criterion, in most circumstances a grant would not be payable.
  4. [69]
    In favour of exempting Mr Conomos from the residence requirement is the fact that Mr Conomos has lived in the subject home for over three decades and continues to reside in the home which had the renovations, as intended by the policy. He has always been the registered owner on the title of the property where the home is situated. The only thing which changed is the description of property on the title and the size of the land. The home remained in the same location and the street address remained the same. But for the changing of the title description when the property was subdivided, Mr Conomos would have met the eligibility criteria of the grant.
  5. [70]
    Section 35 was an amendment to the HomeBuilder directions on 25 May 2022 to ensure consistency with the policy intent of the National Partnership Agreement. The stated objectives of the National Partnership Agreement are to:
    1. Provide a framework to the parties to work co-operatively to support the residential construction industry through the coronavirus crisis and build confidence in the sector over the short to medium term; and
    2. Provide financial assistance to eligible owner-occupiers with the intent of increasing residential construction activity and maintaining direct and indirect residential construction jobs.[34]
  6. [71]
    The objectives of the National Partnership Agreement are to:
    1. Drive demand for new homes and substantial renovations, support increased residential construction activity;
    2. Boost confidence in the residential construction sector to help Australia’s residential constructions sector recover from the Coronavirus crisis; and
    3. Assist eligible owner-occupiers seeking to build a new home or substantially renovate an existing home.[35]
  7. [72]
    The circumstances in this matter would seem to be the specific reason upon which the amendment was made. Mr Conomos was listed on the title when the contract was signed, when the application was made, throughout the construction and for the six month period after the construction was completed. The title description in reference to the lot number changed during that period but Mr Conomos’ identification as the owner of the title upon which the home is on, remained consistent. In addition his actions of subdividing the property appear to be in line with the objectives and outcomes intended under the home builder grant.
  8. [73]
    Mr Conomos’ action of subdividing his property has created two new lots of land on which property will need to be built which will further drive demand for residential constructions. As such these types of decisions by homeowners should be encouraged not penalised.
  9. [74]
    Given Mr Conomos was the natural person listed on the title of the property[36] throughout the period of the signing of the building contract, the start of the construction, the application for a home builders grant and for the six months after the construction, with only the title description changing, he intends to reside at the property, and his actions of subdividing the property align with the objectives and outcomes intended under the home builder grant, the tribunal finds that there is good reason to exempt Mr Conomos from the residence requirement if it was found that he did not comply.
  10. [75]
    The role of the decision-maker in this review is to determine if the application for a grant complies with the statutory requirements of the FHOG Act and its subordinate legislation.
  11. [76]
    For the reasons set out above, and having considered the matter afresh on the merits, the correct and preferable decision is that Mr Conomos satisfies the residence requirements, and there are good reasons to exempt him from the requirements if it was considered he did not satisfy the requirements because of the subdivision of the property and the changing of the lot numbers.
  12. [77]
    I am satisfied that Mr Conomos has satisfied all the other requirements of the FHOG Act and the HomeBuilder directions in regard to the application and the eligibility criteria.
  13. [78]
    Therefore, it is the tribunal’s decision that the decision of the Commissioner on 15 September 2023 is set aside, and the HomeBuilder Grant should be paid to Mr Conomos.
  14. [79]
    Mr Conomos was legally represented throughout the proceedings and has sought that if the application is successful, he is provided an opportunity to be heard on the issue of costs. Accordingly the tribunal orders Mr Conomos to provide any application supported by evidence and written submissions for cost within 14 days and the Commissioner to respond 14 days thereafter.

Orders

  1. [80]
    The tribunal’s orders are:
  1. The Commissioner’s decision of 15 September 2023 is set aside.
  1. Mr Conomos is to be paid the HomeBuilder Grant of $25,000.
  1. Mr Conomos is to file in the Tribunal and provide the Commissioner of State Revenue a copy of any application for costs supported by evidence and written submissions by 4:00 pm on 18 September 2024.
  1. The Commissioner of State Revenue is to provide any response to Mr Conomos application for costs by 4:00pm on 2 October 2024.

Footnotes

[1]There was some dispute whether the application was filed on 14 November 2023 or 16 November 2023. However, the document is sealed 16 November 2023. On 27 February 2024 the Tribunal extended the time for filing the application to review a decision to 16 November 2023.

[2]The Commissioner’s s 21 material, pages 22-23.

[3]The builder signed the date as 30/12/2021. However, all parties agree that is an error and the date is 30/12/2020. There are also emails from Mr Conomos and the builder on 30/12/2020-31/12/2020 confirming the contract was signed by Mr Conomos on 30/12/2020.

[4]The Commissioner’s s 21 material, pages 166-171.

[5]Ibid, page 34.

[6]Ibid, page 21-22.

[7]Ibid, page 27.

[8]Ibid, page 20-21.

[9]Ibid, page 74-75.

[10]Ibid, page 25-72.

[11]Ibid, page 1-6.

[12]QCAT Act, s 24.

[13]HomeBuilder directions, s 19.

[14]Ibid, ss 21 to 36.

[15]Ibid, s 24.

[16]Ibid, s 34.

[17]Ibid, s 35.

[18]Ibid, s 17.

[19]Sections 24 and 240 of the HomeBuilder directions.

[20]The Commissioner’s s 21 material, pages 77-78.

[21][2023] QCAT 203.

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

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

[24]Cody v JH Nelson Pty Ltd (1947) 74 CLR 629 at 647-648.

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

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

[27]Acts Interpretation Act 1954 (Qld), s 14A.

[28]National Partnership Agreement, s 4.

[29]Ibid, s 15.

[30]Ibid, s 16.

[31]Mr Conomos’ submissions [24].

[32]The Commissioner’s s 21 material, pages 77-78.

[33]Phillips v Commissioner of State Revenue [2023] QCAT 426 [69].

[34]National Partnership Agreement, s 15.

[35]Ibid, s 16.

[36]As required under Schedule A, s 13.

Close

Editorial Notes

  • Published Case Name:

    Conomos v Commissioner of State Revenue

  • Shortened Case Name:

    Conomos v Commissioner of State Revenue

  • MNC:

    [2024] QCAT 372

  • Court:

    QCAT

  • Judge(s):

    A/Member D Brown

  • Date:

    03 Sep 2024

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
Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378
1 citation
Jump To
Cite 1 - (2012) 248 CLR 378
Cody v J H Nelson Pty Ltd (1947) 74 CLR 629
1 citation
Jump To
Cite 1 - (1947) 74 CLR 629
Lord Wensleydale in Grey v Pearson (1857) 6 HLC 61
1 citation
Jump To
Cite 1 - (1857) 6 HLC 61
Phillips v Commissioner of State Revenue [2023] QCAT 426
2 citations
Jump To
Cite 1 - [2023] QCAT 426
Cite 2 - [2023] QCAT 426
Project Blue Sky v Australian Broadcasting Authority (1998) 194 C.L.R 355
1 citation
Jump To
Cite 1 - (1998) 194 C.L.R 355
Rezaee and Anor v Queensland Building Services Authority [2011] QCATA 335
1 citation
Jump To
Cite 1 - [2011] QCATA 335
Scott-Holland v Commissioner of State Revenue [2023] QCAT 203
2 citations
Jump To
Cite 1 - [2023] QCAT 203
Cite 2 - [2023] QCAT 203

Cases Citing

Case NameFull CitationFrequency
Pennisi & Pennisi v Commissioner of State Revenue [2025] QCAT 3271 citation
1

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