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Ashton v Commissioner of State Revenue[2024] QCAT 394

Ashton v Commissioner of State Revenue[2024] QCAT 394

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Ashton v Commissioner of State Revenue [2024] QCAT 394

PARTIES:

STACEY ANNE ASHTON

(applicant)

ANTHONY JAMES ASHTON

(applicant)

v

commissioner of state revenue

(respondent)

APPLICATION NO/S:

GAR177-22

MATTER TYPE:

General administrative review matters

DELIVERED ON:

10 July 2024

HEARING DATE:

14 March 2024

HEARD AT:

Brisbane

DECISION OF:

Member King-Scott

ORDERS:

  1. 1.The application is dismissed;
  2. 2.The Commissioner’s decision is confirmed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – review of decision to refuse payment of Home Builder Grant – where home owner entered into an eligible transaction with  first builder – first builder became insolvent – home owner entered into an eligible transaction in all respects with second builder except that second builder was not licensed as at date of first eligible transaction - where grant refused by Commissioner

Acts Interpretation Act 1954 (Qld)

First Home Owner’s Grant and Other Grants Act 2000 (Qld)

Queensland Building and Construction Commission Act 1991 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Statutory Instruments Act 1992 (Qld)

Commissioner of State Revenue v Taske [2023] QCATA 121

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

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

Taske v Commissioner of State Revenue [2022] QCAT 416

APPEARANCES & REPRESENTATION:

Applicant:

Self -represented

Respondent:

Ms G C Hartridge of counsel instructed by the Respondent

REASONS FOR DECISION

Introduction

  1. [1]
    On 18 December 2020, Stacey Anne Ashton and Anthony James Ashton (‘the Applicants’) entered into a contract with Planbuild Homes Pty Ltd (‘Planbuild’) to build a single storey elevated floor home on their land for $268,679.00.[1] They did so in anticipation of applying for, and being granted, a HomeBuilder Grant. They were to be disappointed.
  2. [2]
    They applied for a HomeBuilder Grant on 8 April 2021.
  3. [3]
    On 10 December 2021 the Commissioner refused the Applicants’ application for a HomeBuilder Grant as the builder was not licensed prior to 29 November 2020.
  4. [4]
    The Applicants sought an internal review of the decision. The decision was confirmed on internal review on 10 March 2022. The Applicants now seek a review of that decision.
  5. [5]
    The HomeBuilder Grant arose out of an agreement between the Commonwealth and the States, referred to as the ‘National Partnership Agreement on Homebuilder’ that recognised the mutual interest of the Commonwealth and the States in supporting the residential construction sector to recover from the COVID-19 crisis.[2]
  6. [6]
    The objectives of the Agreement were 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.[3]
  7. [7]
    The Agreement was to facilitate achievement of the following outcomes:
    1. drive demand for new homes and substantial renovations, supporting increased residential construction activity;
    2. boost confidence in the residential construction sector to help Australia’s residential construction sector recover from the coronavirus crisis; and
    3. assist eligible owner-occupiers seeking to build a new home or substantially renovate an existing home.[4]
  8. [8]
    The HomeBuilder Grant came into existence after an announcement by the Commonwealth Treasurer on 4 June 2020. A grant of $25,000 was made available to eligible owner-occupiers who build a new home or substantially renovate an existing home where the contract is signed between 4 June 2020 and 31 December 2020.

First Home Owner’s Grant and Other Grants Act 2000

  1. [9]
    On 20 August 2020, the First Home Owner’s Grant and Other Grants Act 2000 (Qld) (the ‘FHOG Act’) was amended to provide for the administration of the Grant.[5]
  2. [10]
    Criteria for payment of a grant and when it is payable is set out in section 25Q of FHOG Act which provides:

Application for grant and when grant is payable

  1. (1)
    A person who is eligible to apply for a home builder grant under the home builder direction may apply for the grant.
  2. (2)
    An application for a home builder grant must comply with the home builder direction.
  3. (3)
    An applicant for a home builder grant is entitled to be paid the grant if—
  1. (a)
    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
  2. (b)
    the transaction for which the grant is sought is an eligible home builder transaction; and
  3. (c)
    the relevant requirement in relation to the eligible home builder transaction has been met.
  1. [11]
    The starting point is that only an eligible person may apply for a grant. The application must then comply with the administrative direction.
  2. [12]
    The Administrative Direction is described as the ‘home builder direction’ in the Schedule to the FHOG Act and is defined as ‘the administrative direction called “Australian Government HomeBuilder Grant—Queensland” made by the Minister and published on the department’s website’. It provides guidance to the Commissioner and his delegates on the eligibility criteria for applicants under the HomeBuilder Grant.
  3. [13]
    The Commissioner states the administrative direction that applies is the direction in force at the time the Applicants made their application on 8 April 2021 which was the direction published on the website on 1 March 2021. It is not disputed that the first administrative direction (‘first AD’) was published on 31 July 2020. The Applicants submit that it is the first AD that applies for reasons I will expand on later.
  4. [14]
    For joint applicants to be paid a grant, section 25Q(3) of the FHOG Act requires that the applicants must comply with the eligibility criteria for the grant. Under the administrative direction the criteria that the Applicants were required to satisfy was that they are spouses and registered freehold owners of the land, that they were over 18 years of age and Australian citizens and that they did not earn a combined taxable income of more than $250,000.
  5. [15]
    The transaction for which the HomeBuilder Grant was sought, to be eligible was a contract with a commencement date between 4 June 2020 and 31 December 2020. The Commissioner had a discretion to extend that time for a further 3 months under paragraph 2 of the first AD essentially where any delay in commencing construction was due to factors that were unforeseen and outside the control of the parties.
  6. [16]
    Subsequent administrative directions removed that discretion but extended the period to 6 months in total. A further requirement of the eligible transaction was that the total consideration for the contract was to be less than $750,000.
  7. [17]
    Paragraph 7 of the first AD stated that:

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 Act 1991.

  1. [18]
    Paragraph 7 was amended and became paragraph 6 in subsequent administrative directions to read:

If the contract commencement date is on or after 29 November 2020, 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 builder  (sic.) work under the Queensland Building and Construction Act 1991 that was issued prior to 29 November 2020.

  1. [19]
    On completion of an eligible transaction the joint applicants had to occupy the home as their principal place of residence for a continuous period of 6 months.[6] Paragraph 47 of the first AD provided that if the payment of the grant was made in anticipation of compliance then it was repayable if the residence requirement was not complied with.
  2. [20]
    The grant was payable under the administrative direction for an eligible transaction that was a comprehensive home building contract when the foundations had been laid and the first progress payment had been paid to the builder.[7]
  3. [21]
    A comprehensive home building contract is defined in the first AD and subsequent administrative directions 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.[8]

  1. [22]
    On 20 April 2021, Planbuild went into liquidation and could not complete the contract.
  2. [23]
    By email dated 10 May 2021, the Commissioner notified the Applicants that:

Thank you for your HomeBuilder grant application.

The Australian Securities and Investment Commission published a notice on its website confirming your builder, Planbuild Pty Ltd, entered into liquidation on 20 April 2021. We are conscious that this situation may have raised some concerns regarding your HomeBuilder grant application.

This email is to inform you that if Planbuild are unable to commence or complete your build, the Commissioner may consider a further contract under which the work is to be completed, providing the contract is made with a party who is licensed to carry out the building work. Your eligibility will be assessed in accordance with the Administrative Direction and can only be determined once all information has been made available to the Commissioner.

If you have entered into a further contract to complete the building work or are in the process of making arrangements to finalise your build, please advise our office of your circumstances via return email at your earliest convenience, quoting the application reference code.[9]

  1. [24]
    On 12 June 2021, the Applicants entered into a contract with another builder Honour Building Group Pty Ltd (‘Honour’) to build a single storey dwelling off ground for $270,340.40.[10] Honour was licensed to carry out the building work at that time.
  2. [25]
    Construction progressed under Honour. According to the material lodged by the Applicants, the Form 16 Certificate recorded that slab and footings were inspected on 26 August 2021.[11] I note that the builder was described in the certificate as Honour Building. Honour Building Projects Pty Ltd invoiced the Applicants for Base Stage 3 on 10 September 2021. The amount is recorded as being paid on 15 September 2021.[12]
  3. [26]
    The Commissioner concedes that the original contract with Planbuild was compliant with the HomeBuilder Grant, up until it was unable to be completed by the builder.[13] The Commissioner also concedes that the Honour contract did commit to build a home to completion and complied with the terms of the applicable administrative direction other than for the licensing issue.[14]
  4. [27]
    The Commissioner refused the Applicants’ application for a HomeBuilder Grant on 10 December 2021. The basis for the Commissioner’s refusal was that although Planbuild was appropriately licensed as required by paragraph 6 of the administrative direction, Honour was not. Although Honour was licensed when it carried out the work it was not licensed when Planbuild entered into the contract with the Applicants. It is, to say the least, a surprising outcome.  
  5. [28]
    It is not clear from all of the material what work Planbuild did under the Contract. However, the work, other than for the licensing issue, that made the Applicants eligible to be paid was performed by Honour. At the time the Applicants entered into the contract with Honour it was appropriately registered as a builder. Honour Building Projects Pty Ltd was registered to carry out the building work from 27 January 2021.[15]
  6. [29]
    The basis of this submission arises from paragraph 6 of the administrative direction which states:

If the contract commencement date is on or after 29 November 2020, 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 builder work under the Queensland Building and Construction Act 1991 that was issued prior to 29 November 2020.

  1. [30]
    Honour did not a hold a licence prior to 29 November 2020.
  2. [31]
    The first AD provided in paragraph 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 Act 1991.

  1. [32]
    Clearly, if the first AD applied there would be no issue as to the transaction being an eligible transaction and the Applicant’s entitlement to payment of the HomeBuilder Grant.
  2. [33]
    Subsequent administrative directions contained a further paragraph relating to the licensing requirements of the builder. In addition to paragraph 6 above paragraph 5 was as follows:
  1. 5.If the contract commencement date is before 29 November 2020, 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 builder (sic.) work under the Queensland Building and Construction Act 1991 that was issued prior to 4 June 2020.
  2. 6.…
  1. [34]
    The significance of the dates 4 June 2020 and 29 November 2020 appear to be that 4 June 2020 was when the Australian Government first announced the $25,000 HomeBuilder Grant for eligible owner-occupiers who build a new home or substantially renovate an existing home where the contract is signed between 4 June and 31 December 2020. The second date 29 November 2020 relates to the date of the announcement of the extension of the HomeBuilder Grant at a reduced amount of $15,000 where the contract is signed between 1 January 2012 and 31 March 2021.
  2. [35]
    There is no explanation in the legislation, later administrative directions, the National Partnership Agreement or program guidelines as to why it was necessary to amend the first AD to insert the dates by which the builder had to be licensed.

Applicants case

  1. [36]
    The Applicants were ably represented by one of the Applicants, Ms Stacey Ashton who is a practicing lawyer specialising in family law and child protection.
  2. [37]
    The Applicants rely upon 4 grounds for their submission that the decision is wrong. They are that:
    1. the administrative direction that applies is the one in force at the date they signed the contract with Planbuild;
    2. the administrative direction published on the web site when the applicants signed the contract was the first AD;
    3. Darryl McMillan held a Queensland Building and Construction Commission (‘QBCC’) builder license from 30 August 2003 until 30 November 2020 which they say, as nominee, satisfied the direction requirements that the license was issued prior to 29 November 2020.
    4. The Commissioner has taken too narrower approach to the interpretation of the legislation and not one in keeping with the spirit of the HomeBuilder Grant.

The Commissioner’s response

  1. [38]
    The Commissioner submits that the reference to the direction in section 25Q(2) of the FHOG Act, which requires that the application for the HomeBuilder Grant to comply with the home builder direction must be read, in that context meaning the Direction in force at the time of the application.
  2. [39]
    The Commissioner says it was published on the web site and relies upon the evidence of Ms Gabrielle Buckley who is employed by the Queensland Revenue Office (‘QRO’) as a Senior Revenue Officer and Editor and was responsible for administering the QRO online content of its web pages. She has deposed in her affidavit to publishing the updated versions of the administrative directions on the website and the dates of publication.[16]
  3. [40]
    The Original Decision did consider the position of nominees, and as to whether they may have had a building licence themselves that could satisfy the requirements of paragraph 6. However, the manner in which paragraph 6 must be read with paragraphs 1 (Eligible Transaction) and 14 (A Comprehensive Home Building Contract) of the Direction means that the licence must be that of the builder contracting to build the home.
  4. [41]
    There is no discretion to take into account of just and equitable principles, or the personal circumstances of the Applicants in the making of the decision as to the review of the Objection Decision.

Resolution

Which administrative direction applies?

  1. [42]
    The Applicants submit that the administrative direction that applied is the one in force when they signed the contract with Planbuild on 18 December 2020, which was the first AD published on 31 July 2020.
  2. [43]
    The Commissioner says that the applicable administrative direction is the one in force at the time the application was submitted which was the administrative direction published on 1 March 2021. I note that there are a number of administrative directions published since the first AD, only the first AD contains the less restrictive builder licensing requirement.
  3. [44]
    According to the Applicants the ‘eligibility’ requirements for the grant require some preparation by an applicant before an application can be made. They say that the existence of a building contract and the legal consequences that naturally attach to it, is an eligibility requirement that has to exist before one can even apply for the grant.
  4. [45]
    The Applicants submit that the ‘right’ to apply for the HomeBuilder Grant occurs the moment that a contract is signed with a builder (assuming all other standard eligibility criteria is met). This is particularly so where the Government requires applicants to enter into a legally binding contract with a builder in order to even be eligible for the grant, the law and directive that applies to the application is that which applied as at the time the legal consequences attached for the applicant when meeting the eligibility criteria, rather than when an application was filed on a portal after the eligibility criteria had been met.
  5. [46]
    The Commissioner submits that all that arose on the signing of the contracts, was at most a personal expectation (not a right) that the contracts would be suitable to be the basis of an application for a grant. Any rights of the Applicants in respect of the grant accrued on lodging the Application for the HomeBuilder Grant, under the direction in force as at that date which was the administrative direction of 1 March 2021.
  6. [47]
    Further to their argument, the Applicants say section 25Q(2) of the FHOG Act only states that an application must comply with the homebuilder direction. It does not clarify nor provide any room for interpretation to support a finding that the appropriate direction is the one in force at the time of submitting the application.
  7. [48]
    In response to the Commissioner’s argument that section 25Q(3) of the FHOG Act requires compliance with all of the requirements, the Applicants say that requirement is for the payment of the HomeBuilder Grant not when the right accrued. Section 25Q(2) of the FHOG Act concerns the application for a grant.
  8. [49]
    In any case the Commissioner says that the Applicants’ reliance on the first AD is irrelevant as the administrative direction in place at the time of signing of the first contract was the 1 October 2020 administrative direction.
  9. [50]
    Although a prudent applicant for a HomeBuilder Grant would have ensured that all criteria, as an applicant and for the transaction, were met before signing a contract including that the builder was appropriately licensed, that, in my opinion would not obviate the requirement that the criteria be met at the time of lodging the application.
  10. [51]
    The application must be the determinant of qualification for the HomeBuilder Grant not the contract. In any case Planbuild qualified in all respects. On Planbuild going into liquidation the Applicants were faced with finding another builder. The email of 10 May 2021 emphasised that the builder should be licensed, and that the Application would be assessed in accordance with the Administrative Direction. That, in my opinion, could only be interpreted either as the administrative direction at the time of the original application or when the second contract was entered into.
  11. [52]
    In my opinion the administrative direction that applies is the one published on the web site that is in force at a time prior to the making of the application. That administrative direction would be the one published on the website on 1 March 2021.

Which administrative direction was published on the web site at the time of the application?

  1. [53]
    The Applicants maintain that the administrative direction published on the web site at the time they signed the contract was the first AD and that it remained unchanged until January 2021. They say that the 1 October 2020 administrative direction was never published on the web site.
  2. [54]
    It is the Commissioner’s case that the administrative direction in place when the applicants signed the Planbuild contract was the one published on the website at the time, which was the one dated 1 October 2020. That direction contains the same paragraph 7 as contained in the 1 March 2021 direction.
  3. [55]
    It is accepted by the Applicants that the administrative direction in place, at the time they made their application, was the administrative direction of 1 March 2021. They agree that the versions captured on the website matched the administrative directions published by the Office of State Revenue (other than 1 October 2020) as deposed to by Ms Buckley.[17]
  4. [56]
    This issue only arises if I were to find that the correct direction that applied was the direction in place at the time of signing of the contract. I have rejected that submission.
  5. [57]
    As the Applicants have failed on the issue as to which administrative direction applied it is not necessary for me to consider the second limb of their argument being essentially that the updated administrative directions were not published at the time they were made.

Retrospective application

  1. [58]
    The Applicants submit that due to the unique nature of the situation for this matter, the Commissioner has applied a direction that was in place as at the time of signing the Planbuild contract.
  2. [59]
    The applicants initially signed a contract with Planbuild in December 2020, making them eligible for the $25,000 grant. The grant was then extended such that any contracts signed between 1 January 2021 and 31 March 2021 were eligible for $15,000.
  3. [60]
    However, Planbuild then became insolvent and a new contract was not signed with Honour until 12 June 2021, being past the 31 December 2020 cut-off date for the $25,000 grant and even the 31 March 2021 cut-off date for the $15,000 grant.
  4. [61]
    Applying the Commissioner's logic in relation to section 25Q(1), the Applicants say that they had not met the eligibility criteria nor accrued a right to apply for the grant once Planbuild became insolvent, yet, despite signing the contract with Honour only in June 2021, the Commissioner still allowed their application for the $25,000 grant to be assessed.
  5. [62]
    The Commissioner’s response is that the Applicants had accrued their right for the application to be assessed in regard to their first contract dated 18 December 2020 on their application being made on 8 April 2021 in respect of the comprehensive home building contract eligible transaction. The Commissioner's ability to consider 18 December 2020 as the ‘contract commencement date’ flows from the express wording of paragraph 14 of the Direction published 1 March 2021,[18] not from the Commissioner applying any earlier version of the Direction as alleged by the Applicants. Accordingly, the Commissioner submits that there is no incongruity or inconsistency as to the application of the law as it stood at the time of the application for the grant.
  6. [63]
    The provision in the definition of comprehensive home building contract to include any further contract permits the Commissioner to process the application provided the further contract complies with the relevant direction which was the direction applicable at the time of the application.
  7. [64]
    In my opinion there is no retrospective application, the Applicants’ right accrued at the time of making the application under the direction in force at that time being the administrative direction of 1 March 2021.

Nominee licences

  1. [65]
    In the original rejection letter, the Commissioner, inter alia, stated:

In some circumstances, the nominee for a building company can be deemed to satisfy the licensing requirements under paragraph 6 of the Administrative Direction. According to the licence number 15184440 Honour Building Projects Pty Ltd has four nominees.[19]

  1. [66]
    The applicants submitted to the Commissioner that Darryl McMillan held a QBCC builder license from 30 August 2003 until 30 November 2020 which they say satisfied the direction requirements that the license was issued prior to 29 November 2020. After 30 November 2020 he changed his licensing type to nominee supervisor of the same class. [20]
  2. [67]
    The Commissioner in its objection decision resiled from the earlier assertion in the original decision that the nominee for a building company could satisfy the licensing requirements. The Commissioner rightly points out that it is the objection decision that is under review. Nevertheless, that does not prohibit the Tribunal from considering the issue.
  3. [68]
    The Commissioner says that Mr McMillan did not hold a licence as at the time of signing of the contract with Honour and, consequently, the direction was not satisfied. However, they agree Honour held a licence (27 January 2021) at the time the contract with Honour was signed which was 12 June 2021.
  4. [69]
    The Applicants submit that it is not disputed that Mr McMillan's nominee license was being used by Honour prior to 29 November 2020. Honour then undertook an internal restructure resulting in their own licence being granted in January 2021, however Mr McMillan continued to be a nominee license for Honour.
  5. [70]
    In order for a person to be a nominee for a company's building licence, that person is required to be an employee of the company and will be responsible for providing adequate supervisory services. Further, it was confirmed in the decision of Lewis v Commissioner of State Revenue[21] that there is no need to put a gloss on the words ‘a builder’ when all of the protections under the Queensland Building and Construction Commission Act 1991 (‘QBCC Act’) are provided by the nominee and that when read this way the direction achieves the objects of the provisions that are intended to give effect to harmonious goals of providing grants to stimulate the building industry.
  6. [71]
    The Applicants argue that Honour was not a new entity commencing in January 2021 but had been operating for several years through nominee licenses. As such, the protections of the QBCC Act as outlined in the matter of Lewis were enlivened both through Mr McMillan's licence prior to 29 November 2020 and then through Honour’s new licence in January 2021 and that the Commissioner is taking too narrow approach to the interpretation of the direction and requirements for the license. However, Lewis can be distinguished as in that case reliance was placed on the reference to the licenced nominee in the contract itself.[22]
  7. [72]
    It is submitted by the Commissioner that the wording of paragraph 6 (in the context of paragraphs 1 and 14) of the administrative direction is such that it is a continuing requirement for the builder under the contract to be licenced to the end of the contract and completion of the home. In order for the contract with Honour to be considered as part of the eligible transaction in paragraph 1.b of the Direction, the contract and the builder which is the party to the contract, must comply with the eligibility criteria, including the licence date requirement. Accordingly, it is insufficient that Planbuild was appropriately licenced at the time of the making of the first contract.
  8. [73]
    The Commissioner maintains that the objection decision is correct as to the interpretation and operation of paragraph 6 of the Direction. This is particularly as section 42 of the QBCC Act prohibits a person undertaking to carry out building work unless the person holds a contractor's licence of the appropriate class. The word ‘person’ is to be read as including a corporation in this context.The building contract is evidence that Honour was ‘undertaking’ to carry out the building works described in the contract. Accordingly, it must be Honour that holds the requisite licence from the date required under paragraph 6 of the applicable Direction. This is also consistent with the category of eligible transaction that the Applicants are applying for (ie a comprehensive home building contract which is defined to mean a contract ‘under which a builder undertakes to build a home’).
  9. [74]
    I accept the Commissioner’s submission as being correct and that the nominee licences do not assist the Applicants.

Spirit of the Grant

  1. [75]
    The Applicants relied upon the decision of Taske v Commissioner of State Revenue,[23] subsequently overturned on appeal,[24] however, the comments by Member Oliver in the decision are relied upon by the Applicants as still being apposite, particularly the following:

The National Partnership was designed to boost the construction industry at a time when there was a fear that the economy, and confidence in it, was at risk. Its purpose was also to assist homeowners build new homes or renovate existing homes.[25]

  1. [76]
    At paragraph [38] the decision considered that the Commissioner's interpretation or application of the Directive was too restrictive and defeats the purpose of the Directive as a legislative instrument before referring to relevant principles of statutory principles discussed in previous cases. Section 14A of the Acts Interpretation Act 1954 (Qld) which provides that when interpreting a provision, the interpretation that will best achieve the purpose of the Act is to be preferred.
  2. [77]
    At Paragraph [39], while having regard to the above principles, insofar as there may be some uncertainty as to the proper construction and application of the definition, the construction of ‘comprehensive building contract’ that should be favoured is that which best achieves the purpose of the HomeBuilder Grant scheme. The decision further supported this finding with reference to the High Court of Australia case of ‘Project Blue Sky’ which found that ‘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]
  3. [78]
    The Commissioner’s response was that there was no discretion to consider just and equitable principles, or the personal circumstances of the Applicants in the making of the decision.
  4. [79]
    In Commissioner of State Revenue v Taske[27] it was accepted by the Judicial Member that it is the terms of the FHOG Act and the Direction which are the sole source of the eligibility requirements which were to be applied by the Applicant and nothing else.
  5. [80]
    The Applicants submit that the Commissioner has taken a too narrow scope when interpreting the legislation. This, they say is supported by case law in both the decision of Taske v Commissioner of State Revenue,[28] particularly in paragraphs [38) and [39] and again at length in the decision of Scott-Holland v Commissioner of State Revenue[29] (‘Scott-Holland’).
  6. [81]
    The Applicants say of particular note in the Scott-Holland decision are paragraphs [43] to [46] where the intention of the grant was discussed and that adopting the Commissioner's narrow interpretation of the home builder direction, according to the Member, resulted in absurdity and the unintended exclusion of new home builds from  receiving the very grants that were introduced to stimulate the build in the first place, contrary to the purpose and intent of the policy that introduced the grant.
  7. [82]
    It is the Applicants’ submissions that it is absurd and contrary to the purpose of the grant for their application to be rejected on the basis of essentially a builder changing the internal structure of their business. Further, it appears that the Commissioner is expecting everyday Australians to have an in depth understanding of both the QBCC Act and FHOG Act in order to be able to understand and interpret the legislation and to understand when a builder is licensed and whether it is through nominees or otherwise in order to ensure all ‘requirements’ are being complied with for the Application.
  8. [83]
    Finally, it was submitted by the Applicants that Government bodies are recognised as having greater power than individuals and businesses and therefore must not be seen to be abusing the power that comes with their greater experience, resources and authority. As such, the Commissioner must conduct themselves in accordance with the model litigant principles. Namely:
    1. Not seeking to take advantage of an impecunious opponent. While lawyers are permitted in these proceedings, there would be lawyers available within the appropriate Government department rather than engaging an external barrister to assist, which is a cost-prohibitive luxury not available to the Applicants. Further, the Commissioner has tendered over 400 pages of information they rely upon and have used complex legal arguments and case law in their submissions against people who do not have a legal background in this area of law.
    2. Not relying on purely technical defences where the State will suffer no prejudice by doing so. The Applicants submit that their application is based on technicalities. The Applicants further argue that the cost incurred by the State, by way of barrister fees and wages of the various public servants who have been involved in these proceedings would likely be close to, if not more, than the grant for $25,000, particularly if an appeal is then sought by the Commissioner. Therefore, there would have been no prejudice to the State if the grant had been paid rather than relying on technical defences and incurring a similar amount in legal fees and wages.
  9. [84]
    It is true that an exorbitant amount of time and cost has been expended for the sake of a grant worth $25,000.00. The costs expended by the Commissioner would exceed the cost of the grant several times.

Conclusion

  1. [85]
    It is accepted that Honour was registered as a builder when it entered into a contract with the Applicants and when it carried out the work to the stage set by the Grant for payment, namely, the laying of the foundations and payment of the first progress payment.
  2. [86]
    It is also not contested that Honour undertook to build a home from start of building work to the point when the home was ready for occupation.
  3. [87]
    The purpose of the requirement of paragraph 6, presumably, was to ensure that the building work was carried out by a licensed builder, which it was. That does not explain why the builder had to be licensed by 29 November 2020 and why that requirement was not in the first AD.
  4. [88]
    Although the administrative direction contemplated a situation that has occurred here, where there are two contracts, one’s first impression is that it did not envisage the situation that at the time the original contract was entered into that the subsequent builder contracting with the Applicants at a later time might not have been licensed at the time of the original contract. 
  5. [89]
    The objectives of the National Partnership Agreement were not only to provide financial assistance to eligible owner-occupiers to build their own home but also to support the residential construction industry through the Coronavirus crisis and build confidence in the sector over the short to medium term by increasing residential construction activity and maintaining direct and indirect residential construction jobs.
  6. [90]
    Initially, it was difficult to fathom why the administrative direction requirement that the builder be licensed was amended to include a requirement that they be licensed by a certain date. It must be accepted that it was inserted for a specific purpose. That may have been to assist those already in the construction industry and not newcomers. The Applicants appear to acknowledge this when they observe that the ‘cut off’ date was inserted to prevent individuals or companies obtaining a licence to inappropriately benefiting from the grant.[30]
  7. [91]
    In the words of Project Blue Sky Inc v Australian Broadcasting Authority,[31] a provision must not only be interpreted by reference to the statute viewed as a whole but so as to give effect to ‘harmonious goals’. There is an assumption that the legislature, being a rational body, can be taken to have intended to give effect to a rational purpose in enacting the provision.
  8. [92]
    As observed by the Judicial Member in Commissioner of State Revenue v Taske (supra) the terms of the FHOG Act and the Direction are the sole source of the eligibility requirements to be applied and nothing else.
  9. [93]
    Regrettably, I have to confirm the Commissioner’s decision. I say regrettably as I consider the outcome to be grossly unfair to the Applicants. The applicants were encouraged by the Scheme to enter into a contract to own their own home. I understand that because the HomeBuilder Grant was not approved they were compelled to sell the home on completion. I observe that they are not alone in experiencing a disappointing outcome from what was intended to be beneficial legislation. However, the Commissioner appears to have no discretion to accommodate unfairness of this kind, and unfortunately, the legislation does not permit this Tribunal to rectify the situation.
  10. [94]
    I dismiss the application and confirm the Commissioner’s decision.
  11. [95]
    As the Commissioner does not seek costs there will be no order as to costs.

Footnotes

[1] Respondent’s documents, 226.

[2] National Partnership Agreement. Respondent’s documents, 371, [3]-[4].

[3] Ibid, 372, [12].

[4] Ibid, 372, [13].

[5] The State of Queensland, Queensland Government Gazette, No 384, 28 August 2020, 847.

[6] Respondent’s documents, 352, [36].

[7] Ibid, 353, [42(d)].

[8] Ibid, 351, [15].

[9] Ibid, 208.

[10] Ibid, 171.

[11] Ibid, 165-166.

[12] Ibid, 160.

[13] Respondents Preliminary Submissions filed 28 June 2022, 17, [63].

[14] Ibid, 13, [41].

[15] Ibid, 122.

[16] Filed 4 April 2023.

[17] Affidavit O Gabrielle Buckley filed 4 April 2023.

[18] Respondent’s documents, 365, [14] of the administrative direction

[19] Ibid, 108.

[20] Ibid, 130.

[21] [2022] QCAT 109, [21].

[22] Ibid, [16].

[23] [2022] QCAT 416.

[24] Commissioner of State Revenue v Taske [2023] QCATA 121.

[25] Taske v Commissioner of State Revenue [2022] QCAT 416, [13].

[26] Ibid, [69].

[27] [2023] QCATA 121.

[28] [2022] QCAT 416.

[29] [2023] QCAT 203.

[30] Applicants’ submissions filed 16 May 2023.

[31] (1998) 194 CLR 355

Close

Editorial Notes

  • Published Case Name:

    Ashton v Commissioner of State Revenue

  • Shortened Case Name:

    Ashton v Commissioner of State Revenue

  • MNC:

    [2024] QCAT 394

  • Court:

    QCAT

  • Judge(s):

    Member King-Scott

  • Date:

    10 Jul 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
Commissioner of State Revenue v Taske [2023] QCATA 121
3 citations
Jump To
Cite 1 - [2023] QCATA 121
Cite 2 - [2023] QCATA 121
Cite 3 - [2023] QCATA 121
Lewis v Commissioner for State Revenue [2022] QCAT 109
1 citation
Jump To
Cite 1 - [2022] QCAT 109
Project Blue Sky v Australian Broadcasting Authority (1998) 194 C.L.R 355
2 citations
Jump To
Cite 1 - (1998) 194 C.L.R 355
Cite 2 - (1998) 194 C.L.R 355
Scott-Holland v Commissioner of State Revenue [2023] QCAT 203
2 citations
Jump To
Cite 1 - [2023] QCAT 203
Cite 2 - [2023] QCAT 203
Taske v Commissioner for State Revenue [2022] QCAT 416
4 citations
Jump To
Cite 1 - [2022] QCAT 416
Cite 2 - [2022] QCAT 416
Cite 3 - [2022] QCAT 416
Cite 4 - [2022] QCAT 416

Cases Citing

Case NameFull CitationFrequency
Commissioner of State Revenue v Lewis [2024] QCATA 1262 citations
Pennisi & Pennisi v Commissioner of State Revenue [2025] QCAT 3271 citation
Vink v Commissioner of State Revenue [2024] QCAT 4482 citations
1

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