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Vink v Commissioner of State Revenue[2024] QCAT 448

Vink v Commissioner of State Revenue[2024] QCAT 448

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Vink v Commissioner of State Revenue [2024] QCAT 448

PARTIES:

Jennifer vink

(applicant)

v

Commissioner of State Revenue

(respondent)

APPLICATION NO:

GAR540-22

MATTER TYPE:

General administrative review matters

DELIVERED ON:

11 October 2024

HEARING DATE:

2 October 2024

HEARD AT:

Brisbane

DECISION OF:

Member Sammon

ORDERS:

  1. The Applicant’s application for review is dismissed.
  2. I confirm the decision made on behalf of the Respondent Commissioner that the Applicant is not entitled to a grant under the First Homeowners and Other Home Owner Grants Act 2000 (Qld).
  3. There be no order as to costs.

CATCHWORDS:

GENERAL ADMINISTRATIVE REVIEW – HOMEBUILDER GRANT – whether eligibility criteria met under the First Homeowners and Other Home Owner Grants Act 2000 (Qld) – meaning and application of Administrative Direction made under that Act – whether application for grant fell within the meaning of ‘construction commencement date’ under the Administrative Direction

Acts Interpretation Act 1901 (Cth), s 8

Acts Interpretation Act 1954 (Qld), s 4, s 7, s 14A, s 14D,  s 20, s 33

Body Corporate and Community Management Act 1997 (Qld), s 35

First Homeowners and Other Home Owners Grants Act 2000 (Qld), s 25Q, s 25R, s 57, s 59, s 60, the Dictionary (the schedule)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 4(d), s 20, s 21, s 100, s 102

Statutory Instruments Act 1992 (Qld), s 7, s 14(1), schedule 1

Adco Constructions v Goudappel (2014) 254 CLR 1

Alcan (NT) v Territory Revenue (2009) 239 CLR 27

Ashton v Commissioner of State Revenue [2024] QCAT 394

Azevedo v Secretary, Department of Primary Industries and Energy (1992) 106 ALR 683

City of Wanneroo v The Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813

McCarthy & McCarthy v Commissioner of State Revenue [2022] QCAT 342

Project Blue Sky v ABA (1998) 194 CLR 355

Psujek v Commissioner of State Revenue (unreported, Tribunal reference GAR221-22 delivered on 8 March 2023)

SZTAL v Minister for Immigration (2017) 262 CLR 362

APPEARANCES & REPRESENTATION:

Applicant:

Mr D Butler KC with Mr T Ritchie instructed by Colin Biggers & Paisley

Respondent:

Mr D Fawcett, instructed by the Office of State Revenue

REASONS FOR DECISION

Background

  1. [1]
    This is an application by Ms Vink to the Tribunal in its review jurisdiction[1] in which she seeks to set aside a decision made by the Commissioner of State Revenue (‘the Commissioner’) that she was not eligible to receive a HomeBuilder Grant.
  2. [2]
    An applicant may make an application for a HomeBuilder Grant under the First Home Owner Grant and Other Home Owner Grants Act 2000 (Qld) (‘the Grants Act’).
  3. [3]
    Ms Vink made an application for a Grant under that Act on 26 December 2020. The Commissioner decided that she was not eligible to receive the Grant, taking the view that the ‘construction commencement date’ for the new home (a residential unit), which Ms Vink had signed a contract to purchase, pre-dated the critical date of 4 June 2020. The relevant ‘objection decision’[2] was made on 29 November 2022.
  4. [4]
    The only issue in this proceeding was whether the excavation and site works for the residential unit which Ms Vink signed a contract to purchase, were commenced before 4 June 2020. As I will discuss in these reasons, that date is a critical date for eligibility for the Grant.
  5. [5]
    Ms Vink contends that the relevant excavation and site works were only undertaken after that date. The basis for the Commissioner’s decision was that the relevant works were completed before 4 June 2020, namely in November 2019.

Tribunal jurisdiction

  1. [6]
    Sections 59 and 60 of the Grants Act confer jurisdiction on the Tribunal to hear and decide a review of the objection decision on an application by an ‘objector’, in this case Ms Vink. The purpose of a review by the Tribunal in its review jurisdiction is to produce the ‘correct and preferable decision’.[3]
  2. [7]
    In this case, Ms Vink submits that the correct and preferable decision is that her application for the Grant be approved. The Commissioner seeks to uphold the objection decision.
  3. [8]
    Section 60(2)(a) of the Grants Act requires the Tribunal to hear and decide review of the objection decision by way of a reconsideration of the evidence before the Commissioner when the decision was made, unless the Tribunal considers it necessary in the interests of justice to allow new evidence. In this case, the Tribunal made orders allowing each party to file additional evidence, in the interests of justice. I will come to that evidence in these reasons.
  4. [9]
    Further, s 60(2)(b) requires the Tribunal to decide the review of the objection decision in accordance with the same law that applied to the making of the original decision.[4] In this case, that is the Grants Act as it was on the date of the original decision, which was made on 21 June 2022.[5]

Entitlement to the Grant

  1. [10]
    The entitlement to the Grant applied for by Ms Vink is described in s 25Q of the Grants Act, contained in part 3B and headed ‘Home builder grants’. It is relevantly as follows:
  1. An applicant for a home builder grant is entitled to be paid the grant if—
  1. the applicant … 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.

(Added emphasis)

  1. [11]
    The underlined expression ‘home builder direction’ is defined in the Dictionary (the schedule) of the Grants Act as follows:

home builder direction means the administrative direction called ‘Australian Government HomeBuilder Grant—Queensland’ made by the Minister[6] and published on the department’s website.

  1. [12]
    The parties agree that Ms Vink's application complied in all respects with the requirements of s 25Q, except for an aspect under the relevant home builder direction, about whether the date when ‘excavation and site preparation works’ started for the new home which Ms Vink contracted to purchase.

The Administrative Direction

  1. [13]
    The relevant ‘home builder direction’ is a document entitled ‘Administrative Direction Australian Government HomeBuilder Grant – Queensland’ (‘the Administrative Direction’).
  2. [14]
    There were actually two Administrative Directions in contention in this proceeding:
    1. one dated 1 October 2020, which was the Administrative Direction current as at the date Ms Vink made her application for the Grant, on 26 December 2020; and
    2. one dated 25 May 2022, current as at the date of the original decision made on behalf of the Commissioner on 21 June 2022.
  3. [15]
    Mr D Butler KC who appeared with Mr Ritchie of counsel for Ms Vink contended that the better view was that the Administrative Direction which applies for the purposes of this proceeding is the first Administrative Direction in order of time, but even if the second Administrative Direction was to apply, then the outcome of this review is the same. Mr Fawcett of counsel, who appeared for the Commissioner contended that the second Administrative Direction in order of time is applicable.
  4. [16]
    The operative part of the Administrative Direction for the purposes of this review, under the heading ‘Eligible transactions’ is clause 1(a). Clause 1 describes the ‘Eligible transactions’[7] for payment of the Grant, and relevantly for the contract signed by Ms Vink, the eligible transaction is, under paragraph (a):[8]

a contract for the freehold purchase of a new home in Queensland if the contract commencement date is between 4 June 2020 and 31 March 2021 (both dates inclusive), and the construction commencement date is on or after 4 June 2020 and within 18 months of the contract commencement date.

(Added emphasis)

  1. [17]
    There is no controversy that the contract signed by Ms Vink for the purchase of a residential unit had a ‘contract commencement date’ within the relevant dates, since it was signed on 26 December 2020. Instead, the controversy in this case concerns the application of the ‘construction commencement date’ (added emphasis).
  2. [18]
    The expression ‘construction commencement date’ is defined in clause 12 of the first Administrative Direction, and clause 11 of the second Administrative Direction, and is the specific clause in issue in this review. It is as follows:

Construction commencement date means:

  1. a.
    for a contract for the purchase of a new home or a comprehensive home building contract – the date when excavation and site preparation works for the eligible transaction start; or
  1. b.
    for a substantial renovation contract mentioned in paragraph 19.a – the date when building work under the contract starts; or
  1. c.
    for a substantial renovation contract mentioned in paragraph 19.b. – the date when demolition work under the contract starts; or
  1. d.
    for a substantial renovation contract mentioned in paragraph 19.c. – the date when building work under the contract starts.
  1. [19]
    The only difference in the text just quoted between the two versions of the Administrative Direction, apart from the clause number, is that the second, more recent Administrative Direction, has a footnote inserted after the operative text of paragraph (a), on which the Commissioner places some weight and which I will come to in these reasons.
  2. [20]
    The clause applicable to Ms Vink’s contract is clause 11(a). The remaining paragraphs concern a ‘substantial renovation contract’, not relevant to Ms Vink’s contract, but I include those other paragraphs because the Commissioner places some reliance on them for what the Commissioner contends to be the correct interpretation of paragraph (a).
  3. [21]
    When clause 1(a) is read with clause 11(a), the relevant eligibility for purchase of a new home in freehold is that the construction commencement date, which is the date when excavation and site preparation works for the eligible transaction start, must be after 4 June 2020.
  4. [22]
    The expression ‘excavation and site preparation works’ is not defined in either version of the Administrative Direction.

The relevant facts

  1. [23]
    The key relevant facts are not in contention between the parties. The contract Ms Vink signed on 10 December 2020 was for purchase of a residential unit in a building described as ‘Arcadia South Gallery’, located at West End in Brisbane. The contract for the purchase was ‘off the plan’, in the sense that Arcadia South had not been constructed at that point in time. Instead, a ‘design and construct’ contract was signed by the developer of Arcadia South, SH West End Pty Limited and SH WE Hills Dev Pty Limited, and Hutchinson Builders Pty Limited on 7 December 2020.[9] Arcadia South was constructed by November 2021 and there is no contention about that.
  2. [24]
    Arcadia South is one building component of a larger overall development site at West End in Brisbane called ‘West Village’. The overall development is built around a former ice cream factory. As well as Arcadia South, there are several other existing buildings developed on the site.
  3. [25]
    An important fact that is also not in contention, is that Arcadia South was built on top of a concrete structure that spanned the site at West End forming a podium on which Arcadia South was built, and on which other proposed buildings were proposed to be built. During the hearing this was referred to as the ‘Site-wide Basement’ and I am content to adopt that description.
  4. [26]
    Mr Butler KC referred me to a ‘vertical profile’ diagram showing Arcadia South as built, placed on top of the Site-wide Basement.[10] The diagram shows that the Site-wide Basement consists, from the bottom working upwards, of four basement levels, then a podium on which Arcadia South was built. In one place, the podium comprises two levels described as representing a supermarket on one level, and a loading dock on another. The diagram contains the notation that it was:

Excavated and constructed separately in one contract to facilitate mixed-use staging across the site. Complete Nov 2019.

  1. [27]
    Although to some extent that description amounts to advocacy by the solicitors for the purchasers in Arcadia South in seeking the grant, Mr Fawcett did not disagree with that description.
  2. [28]
    For his part, Mr Fawcett tendered, as exhibit 5, Survey Plan 309210, dated 28 October 2021, which shows in the one survey plan, the basement levels and also the floors of Arcadia South for residential accommodation. The survey plan shows provision for a lift operating from the basement levels to the floors housing the residential accommodation in Arcadia South. He also referred to the management statement for the community titles scheme[11] which included the basements as common property, but large parts of which had been designated for car parks for the purchasers of lots in Arcadia South.[12] In other words, the Site-wide Basement included car parks for the purchasers in Arcadia South. Mr Butler KC did not disagree with these contentions.
  3. [29]
    These agreed facts are important because on the one hand, the Commissioner contends that the Site-wide Basement concrete basement levels and the podium comprise the foundations and excavations for Arcadia South, including the unit which Ms Vink contracted to buy. Mr Fawcett submitted that if the Commissioner is correct about that, then Ms Vink was not entitled to the grant.
  4. [30]
    On the other hand, Mr Butler KC contended that Arcadia is a separate building from the Site-wide Basement and that the foundations and excavations for that structure should not be taken into account for the purposes of the construction commencement date. That is perhaps Mr Butler’s main contention in this case. If that is the case, then Ms Vink should be entitled to the grant, because the construction of Arcadia South only commenced after 4 June 2020.

Mr Seguchi's evidence

  1. [31]
    Mr Butler KC called Mr Atsuhide Seguchi to give oral evidence and to confirm the accuracy of an affidavit he had deposed to in the proceeding, which became exhibit 6.[13] Although that evidence was not evidence before the Commissioner in making the decision under review, the Tribunal had earlier made an order allowing the affidavit to be filed. Mr Fawcett did not object to Mr Seguchi's affidavit being admitted into evidence, or to the other oral evidence he gave.
  2. [32]
    None of Mr Seguchi’s evidence is in contention although its significance is subject to the competing positions of the parties in this case.
  3. [33]
    Mr Seguchi is a director of the developer of Arcadia South, and the entire West Village project. He gave evidence that the developer’s contractor initially carried out excavation and reinforcement works across the whole site to create the Site-wide Basement. A concrete slab was constructed at the ground level of the Site-wide Basement. Each of the buildings comprising the West Village project was, or will be, constructed independently of one another, but some of them are physically connected.
  4. [34]
    Overall, Mr Seguchi's evidence appears to be directed to the main point made on behalf of Ms Vink that the Site-wide Basement is a separate building from Arcadia South. His affidavit continued that the decision on whether to construct each building or stage in the West Village project is determined by a number of considerations, including an assessment of revenue or profitability and marketing conditions, amongst others. At the time that the Site-wide Basement was constructed, the developer was not committed to constructing Arcadia South at any particular time, or at all. He gave evidence that the Arcadia South building required approval from ‘head office’ in Japan, and through him, Ms Vink tendered the internal approval document within the developer for the Arcadia South project, which became exhibit 4.
  5. [35]
    Under cross-examination by Mr Fawcett, Mr Seguchi said that Arcadia South was part of the master plan for the West Village project. He agreed that part of the basement for the Site-wide basement serves as a car park for Arcadia South. He also agreed that the part of the Site-wide Basement located under Arcadia South was to serve as the foundations for Acadia South when Arcadia South was built. However, the decision on what kind of building was to be placed on top of that part of the Site-wide Basement and whether it was to be a residential building containing units, or put to a commercial use, was subject to the kind of considerations described in his affidavit.
  6. [36]
    Finally, he gave evidence that he considered Arcadia South to be a separate building from the Site-wide Basement.

Ms Vink’s contentions on the correct interpretation and application of the ‘construction commencement date’

The purpose of the HomeBuilder Grant

  1. [37]
    Mr Butler submitted that the purpose of the HomeBuilder Grant had relevance for the correct interpretation of the ‘contract commencement date’ in the Administrative Direction.
  2. [38]
    He referred me to a national agreement between the Commonwealth and all Australian States and Territories entitled ‘National Partnership on HomeBuilder’ which was contained in the s 21 material.[14] I accept that the purpose of the agreement was to establish a:

time-limited, uncapped grant program that will assist the residential construction sector by encouraging the commencement of new home builds and renovations this year, boosting confidence in the sector.[15]

  1. [39]
    The agreement was signed by the then Commonwealth Treasurer on 12 June 2020, and elsewhere states that the agreement would facilitate achievement, amongst other things, of helping ‘Australia’s residential construction sector recover from the Coronavirus crisis’.[16]
  2. [40]
    Mr Butler then developed his submission that the purposes of the national agreement should be taken into account when interpreting the scope of the meaning of ‘construction commencement date’ based on the authority of s 14A(1) of the AIA which provides 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.

  1. [41]
    Allied with that submission, he also placed reliance on the well-known decision of the High Court of Australia on the correct approach to statutory interpretation in Project Blue Sky v ABA[17] that an Act should be interpreted by reference to its scope, purpose and object. I accept the proposition that the purpose and object of the Grant was to provide a stimulus to the Australian building industry to assist with the adverse effects of the COVID virus in 2020.

The effect of the second Administrative Direction

  1. [42]
    Mr Butler submitted that the better view is that the first Administrative Direction is the one applicable to Ms Vink’s application for the Grant because the first was in effect when she made her application. He submits that when Ms Vink made her application, she had an accrued right to have her application determined under the first Administrative Direction, rather than the second Administrative Direction, which was in force when the original decision was made, on Ms Vink’s grant application.
  2. [43]
    The relevant difference in the second Administrative Direction is that it inserted a footnote containing examples of the ‘construction commencement date’ into what was clause 11 in the second iteration, containing the definition of ‘construction commencement date’. The footnote reads as follows:

2 For example,

For an off-the-plan purchase of a new home which is a stand-alone house in a development estate (which is subsequently individually titled), the construction commencement date is when excavation and preparation of foundations for the particular new home starts (as opposed to general excavation and site preparation work in the broader development which preceded this).

For an off-the-plan purchase of a new home which is a unit or townhouse (which is subsequently individually titled) which forms part of a building, the construction commencement date is when excavation and preparation of foundations for the building starts.

  1. [44]
    Mr Butler submits, and I agree, that the examples do not change the definition of the ‘construction commencement date’. On the other hand, the examples illustrate what the definition means, in some specific factual applications.[18]

Additional points in support of Ms Vink’s preferred interpretation

  1. [45]
    Mr Butler advanced three points on why Ms Vink’s interpretation of ‘construction commencement date’ should be preferred, which is that it should mean that the term is satisfied by the commencement of work to build Arcadia South itself, which was after 4 June 2020:
    1. if the Commissioner’s interpretation is correct, it means that it would be impossible for any purchaser of a residential unit in Arcadia South to receive the Grant, and that would conflict with the purpose of the Grant and the Administrative Direction, whichever version applies;
    2. Arcadia South is a separate building from the Site-wide Basement;
    3. the Commissioner’s interpretation ignores the reality that Arcadia South may never have been constructed.
  2. [46]
    In elaborating on the first of these points, Mr Butler raised examples of other potential building projects and their application concerning the Grant. For the purpose of the Grant, he raised a case where a developer, having the choice what kind of building to construct on top of the slab, may choose to build a residential tower instead of a commercial building. On the Commissioner’s interpretation, if a developer was to do that, none of the purchasers of a residential building would have the benefit of the Grant, if the slab was constructed before 4 June 2020.
  3. [47]
    He raised the example of a residential tower built on bare dirt. In that case, on the Commissioner’s interpretation, all of the purchasers of a residential unit in a tower such as that would be entitled to a grant.
  4. [48]
    The third example Mr Butler raised, was of residential units built on top of a railway station. If the Commissioner was correct, then no-one who was to buy a residential unit in such a building would have the benefit of the grant, if the railway station was built before 4 June 2020.
  5. [49]
    For each of these scenarios, Mr Butler posed the rhetorical question of how the purpose of the Administrative Direction providing a stimulus to the building industry would be met by the Commissioner’s decision?
  6. [50]
    He advanced his client’s submissions by reference to the decision of the High Court in SZTAL v Minister for Immigration,[19] in particular that the starting point for ascertaining the meaning of a statutory provision is the text of the provision itself whilst, at the same time, regard is had to its context and purpose. That is not to deny the importance of the natural and ordinary meaning of a word.
  7. [51]
    In the same vein, he cited the decision of the Federal Court in City of Wanneroo v The Australian Municipal, Administrative, Clerical and Services Union,[20] for the proposition that the context of a term may extend to the entire document of which it is a part or to other documents with which there is an association. Context may also include ‘... ideas that give rise to an expression in a document from which it has been taken’. Given that the Administrative Direction is not part of the Grants Act itself,  but a document referred to in the Grants Act, he referred to authority that documents given force by legislation when the document is itself not of a legislative character may be interpreted applying the principles of statutory interpretation.[21]
  8. [52]
    On the second point referred to above in paragraph [45], that Arcadia South is a separate building from the Site-wide Basement, Mr Butler returned to the evidence in the case.
  9. [53]
    He took to task the contents of paragraph 8 of the SOR, that state that the Site-wide Basement formed part of Arcadia South, as the two pieces of construction were connected, and therefore as construction of the Site-wide Basement commenced before 4 June 2020, Ms Vink’s contract was not eligible for the Grant. Mr Butler placed reliance on exhibit 4, as the internal approval document within the developer, and submitted that Arcadia South would never have commenced if not for the internal approval which was only approved in October 2020.
  10. [54]
    Mr Butler also relied on certificates of inspection contained within the SOR documents, which contains separate certificates for inspection for the Site-wide Basement[22] and Arcadia South itself.[23] In those certificates, the Site-wide Basement was given a building classification separate to that of Arcadia South.
  11. [55]
    Next, Mr Butler referred to an amendment of the Building Management Statement for the West Village project, contained in exhibit 3 which is the Design and Construction Contract for Arcadia South. Paragraph 1.1, of this document under the heading ‘Explanation’ states that West Village is a:

multi-Stage mixed use development comprising various Lots that, on completion will contain or be contained in:

  1. a multi-level basement that is within the BMS Land and is shared between the stages to the extent provided in this statement;
  2. One or more Buildings for each stage of the development comprising residential apartments, shops and commercial and other property;
  3. open space areas.
  1. [56]
    Mr Butler placed reliance on the West Village project being a staged development, starting with the Site-wide Basement. He submitted that when the construction for the Site-wide Basement started, there was no certainty that Arcadia South would ever be constructed.
  2. [57]
    Finally on this point, Mr Butler referred to the evidence of Mr Seguchi, that he considered that:
    1. Arcadia South was a separate building from the Site-wide Basement;
    2. when the Site-wide Basement was built, there was no guarantee that the building that became Arcadia South would ever be built;
    3. when the Site-wide Basement was built that there was no guarantee that a residential building would be built on top of it, and the use could have been for a commercial building, depending on the considerations he deposed to in his affidavit;
    4. an internal approval within the developer was required before any building could be constructed on top of the Site-wide Basement.

The Commissioner’s contentions on the correct interpretation and application of the ‘construction commencement date’

Response on the purpose and object of the Grant

  1. [58]
    Mr Fawcett, on behalf of the Commissioner, did not refute the correctness of the authorities relied upon on behalf of Ms Vink that legislation should be interpreted in accordance with its purpose and objects. However, the point he made in response to that contention is that the purpose of legislation cannot overcome clear words in the legislation, or a document such as the Administrative Direction which is adopted by the relevant legislation.
  2. [59]
    Perhaps the main point made on behalf of the Commissioner, in Mr Fawcett’s words, is that purpose is always relevant in interpretation of legislation, ‘but must cleave to the legislative text itself’. In summary, the Commissioner submitted that the text of the definition of ‘construction commencement date’ is clear when applied to the facts of this case, and simply requires an analysis of when the excavation and site preparation works start for a contract for the purchase of a new home. The correct focus for the text of the definition must be on the functional effect of the foundation works concerned, which involved the excavation and site preparation works for the contract for purchase of a new home. The question must be directed to asking what is the physical function of the excavation and site preparation works for a contract for the purchase of a new home.
  3. [60]
    Mr Fawcett also relied on the same passage from SZTAL relied upon by Mr Butler, on the correct function of the purpose of legislation when interpreting it.
  4. [61]
    In the same vein, Mr Fawcett referred to another decision of the High Court in Alcan (NT) v Territory Revenue,[24] where the High Court stated that historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of statutory text. 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.
  5. [62]
    In the context of legislation which is said to have a beneficial or remedial character, in the sense that Ms Vink submits that the Grants Act and the Administrative Direction(s) have a beneficial character, Mr Fawcett referred me to another High Court decision, in Adco Constructions v Goudappel.[25] There, the plurality of the High Court Justices in that decision referred to workers compensation legislation having a remedial character reflecting a beneficial purpose, for injured workers, which requires a beneficial construction, if open, in favour of the injured worker. However, to accept that beneficial purpose as a whole does not mean that every provision or amendment to a provision has a beneficial purpose or is to be construed beneficially. The purpose of an individual provision must be identified. The High Court found that the statutory provision in that case had the purpose of expanding on a regulation-making power to allow regulations to be made which could affect existing pre-existing rights of an injured worker, before amendment to the legislation.

The effect of the second Administrative Direction

  1. [63]
    Mr Fawcett submitted that the effect of the footnotes to the definition of ‘construction commencement date’ is not to change the definition of that term, in either version of the Administrative Direction, but that the examples in the second version clarify when the ‘construction commencement date’ applies for the purposes of the Grant.
  2. [64]
    As to which version of the administrative direction applies to this review by the Tribunal, Mr Fawcett submitted that the better view is that it is the second version. He placed reliance on s 60(2)(b) of the Grants Act which provides that:

QCAT must-

  1. decide the review of the decision in accordance with the same law that applied to the making of the original decision.
  1. [65]
    That of course depends on what was the applicable law when the original decision was made, and Mr Fawcett submitted that when the original decision was made on behalf of the Commissioner, the second version of the Administrative Direction was the correct version as a matter of law.
  2. [66]
    In support of his submission, Mr Fawcett referred me to a decision of the Tribunal in McCarthy & McCarthy v Commissioner of State Revenue.[26] In that case, the McCarthys applied for a Grant for that part of the Administrative Direction that allowed a grant to be paid for a ‘substantial renovation contract’, rather than for construction of a new home. The main issue in that case was whether components of the work that the McCarthys had contracted to be done on their home as a whole fell within the meaning of a ‘substantial renovation contract.’ It appears that there was some change to the Administrative Direction which made the criteria for a grant more beneficial for the McCarthys than the earlier version.
  3. [67]
    The Commissioner argued in that case that the effect of s 7 and s 20 of the AIA was that the operation of the original Administrative Direction was saved in regard to the McCarthys’ accrued rights. However, the Tribunal decided in that case[27] that the later version was in force at the time of the original decision and in reliance on s 60(2)(b), the law as at the date of the original decision is the law to be applied by the Tribunal, which was the latter Direction in time.
  4. [68]
    Mr Fawcett also referred to the more recent decision of the Tribunal concerning an application for the Grant, of Ashton v Commissioner of State Revenue.[28] There, the issue about which Direction applied was the difference between the Direction as at the date the Ashtons, as applicants for the Grant, signed a contract for the building work, compared to the Direction in force on the date that the Ashtons made their application for the Grant. Accordingly, the question in that case did not directly concern the version of the Direction that I must apply in this case, because of the effect of s 60(2)(b) of the Grants Act.
  5. [69]
    The significant of the difference in the applicable direction in Ashton was because the licensing requirements for the builder concerned were more stringent in the Direction that applied when the Ashtons applied for the Grant, compared to when the contract was signed. In Ashton, the Tribunal decided the Direction that applied was the one in force when the Ashtons applied for the Grant.[29] It was only the application for the Grant that triggered whatever entitlement the Ashtons had to the Grant, not the signing of the construction contract itself. I do not think that there is any inconsistency between the interpretive approach that the Commissioner submits in this case, and McCarthy and Ashton. In my view, it is clear that whatever rights an applicant for a Grant has can only be triggered once an application is made for the Grant, not by the signing of a contract for the construction works. That is not the point of significance or contention in the present case.
  6. [70]
    In responding to the submission made on behalf of Ms Vink, that she had an accrued right to have her application for the Grant assessed under the first Direction in order of time, Mr Fawcett referred me to the decision of the Federal Court of Australia in Azevedo v Secretary, Department of Primary Industries and Energy.[30]
  7. [71]
    In that case, French J decided that an applicant for a fisheries licence had an accrued right to have his application decided on the basis of a fisheries plan as it was before  subsequent amendment. However, he decided that the amendments to the fisheries plan amounted to a contrary intention, so that the accrued rights under the earlier management plan were displaced, for the purposes of the Acts interpretation legislation that applied to the Commonwealth legislation concerned, namely s 8 of the Acts Interpretation Act 1901 (Cth). Mr Fawcett submitted that the effect of s 60(2)(b) of the Grants Act evinced an intention that the law as it was at the time of the original decision would prevail over any accrued right that Ms Vink had, in consideration of the application for review to the Tribunal, of the Commissioner’s decision.
  8. [72]
    Further, Mr Fawcett also placed reliance on the text of the latter version of the Administrative Direction under the heading ‘Background’ which describes the history of the Grant. The paragraph relied on by Mr Fawcett is as follows:

On 25 May 2022, to ensure consistency with the policy intent of the National Partnership Agreement following clarification obtained from the Australian Government, the Commissioner of State Revenue approved amendments to the administrative direction in relation to the construction commencement date and allowing the Commissioner to shorten or waive residence requirements in certain circumstances.

(Added emphasis)

  1. [73]
    He submitted that the latter version of the Administrative Direction applied, because although Ms Vink made her application on 26 December 2020, it was not decided at the original level by 14 April 2021, which was the time frame in which an application for the Grant had to be made,[31] but after that time, the original decision was made on 21 June 2022, which was after the second version of the Administrative Direction commenced.

The Commissioner’s submissions on the correct interpretation of the definition of ‘contract commencement date’

  1. [74]
    Mr Fawcett on behalf of the Commissioner submitted the text of the footnote to the definition of ‘construction commencement date’ does not add anything to the definition, but makes clear that the correct focus for the definition of ‘construction commencement date’ should be on the functional effect of the foundation works for whatever was considered for the purpose of a contract for the purchase of a new home. Put another way, the question to be considered is of the physical function of whatever foundation works are considered as to whether they amount to ‘excavation and site preparation works’ for the relevant contract for the purchase of a new home.
  2. [75]
    He then turned to the text of the definition of ‘construction commencement date’ (as set out above in paragraph [18]) and noted that the words ‘under the contract’ are present in paragraphs (b)-(d) of that definition, but not in the relevant paragraph, being paragraph (a). He submitted that the effect of the contrast between paragraph (a) and paragraphs (b)-(d) confirm that the correct focus for paragraph (a) should be on the commencement of the physical work of ‘excavation and site preparation works’ contained in paragraph (a) of the definition, rather than the date when building work starts ‘under the contract’ which is the focus of paragraphs (b)-(d).
  3. [76]
    Mr Fawcett submitted that the second example given in the footnote to the definition is ‘on all fours’ with Ms Vink’s case. That is, that the ‘construction commencement date’ for an off-the-plan purchase of a new home which is a unit, and which is subsequently individually titled, which forms part of a building, is the date when excavation and preparation of foundations for the building starts. In this case, the Commissioner submitted that the excavation and preparation of foundations for Arcadia South occurred when the excavation and preparation of the Site-wide Basement commenced. Referring to the evidence of Mr Seguchi, those foundations were purpose-built for the building which came to be built, which was to house the unit that Ms Vink had purchased under her contract with the developer. Even under the terms of Ms Vink’s contract of sale to purchase her unit,[32] Mr Fawcett submitted that the expression ‘construction commencement date’ is defined[33] to have the same meaning as that term is defined for the purposes of the Grant ‘from time to time’, including any extensions granted by ‘the Administering Authority’.
  4. [77]
    Also, on the contract signed by Ms Vink with the developer, Mr Fawcett referred to clause 4 of the Special Conditions, which required the developer to comply with the Developer Requirements’ and under which the developer must pay the ‘Grant Amount’ to the ‘Buyer’ (Ms Vink) on the date specified in clause 4(d).

Factual propositions relied upon by the Commissioner to establish that the Site-wide Basement formed the foundations for Arcadia South

  1. [78]
    The Commissioner submitted that there were several factual matters that prove the Site-wide Basement formed the foundations for Arcadia South.
  2. [79]
    First, Mr Fawcett referred to a photograph[34] attached to a letter from the solicitors for Ms Vink, which shows Arcadia South located on top of the Site-wide Basement.
  3. [80]
    Second, the Commissioner placed reliance on the Form 16 Inspection Certificate for the Site-wide Basement, dated 5 November 2019.[35] The list of the ‘structural elements inspected’ is contained within the Form 16. It shows foundational work for ‘building 6’ to have been one of the elements inspected, and that building 6 became Arcadia South.[36]
  4. [81]
    Mr Fawcett submitted that the factual matters in the evidence demonstrate the following points:
    1. Mr Seguchi's evidence confirmed that the Site-wide Basement was purpose-built to be the foundations for the building that became Arcadia South;
    2. there are elements in the basement levels that are referable only to the building that became Arcadia South;
    3. those events all occurred before June 2020 which was the date after which excavation and site preparation works were excluded from eligibility for the Grant.
  5. [82]
    The Commissioner also relied on other factual matters in the evidence intended to establish that Arcadia South was always intended to be built by the developer. First, the Survey Plan for the Village West project used to establish the body corporate for the project contemplated there being a single body corporate for the entire project, including Arcadia South.[37] That survey plan was signed by the developer’s surveyors on 12 September 2019, and on behalf of the Brisbane City Council on 14 November 2019. That survey plan[38] shows ‘Future Tower B’, which became Arcadia South, as being planned as of November 2019, when the Site-wide Basement was completed.
  6. [83]
    Mr Fawcett submitted that it was always intended that Arcadia South was to be built and the survey plan includes references to the Site-wide Basement being part of Arcadia South. He continued that the contingency that Arcadia South was either to be built as a commercial or residential building does not deprive the works for the foundations for the building that became Arcadia South, of their existence. In any event, he submitted that the hypothetical became real, because Arcadia South was built as a residential building.
  7. [84]
    In response to the case put by Ms Vink, that the Site-wide Basement is a separate building to Arcadia South, Mr Fawcett submitted that the Site-wide Basement does indeed form part of the building that became Arcadia South. However, he submitted that the Commissioner does not need to go as far as establishing that proposition because the excavation works, which is the subject of the definition of ‘construction commencement date’ do not have to form part of the same building that is the subject of an application for the grant, because of the definition.
  8. [85]
    Whilst accepting that there were some documents in the evidence that seemed to reflect the Site-wide Basement being a separate building to Arcadia South, he submitted that there are more probative documents that suggest that the Site-wide Basement became part of Arcadia South. He referred to the definition of ‘Building’ contained in the contract of sale that Ms Vink signed,[39] which defines the term to mean:

the buildings forming part of stage 2 of the Development, podium levels, basement and other improvements to be constructed on the Stage 2 land.

  1. [86]
    Mr Fawcett next referred to exhibit 5, which was the final Survey Plan 309210 which shows Arcadia South as being ‘Tower B’ as comprising ‘22 Levels including 4 Basement Levels’. He submitted that the survey plan which creates Ms Vink’s lot also creates the basement for the community title scheme in West Village. Each owner holds the basement, which is common property, as a tenant in common, pursuant to   s 35 of the Body Corporate and Community Management Act 1997 (Qld).
  2. [87]
    These facts, Mr Fawcett submitted, demonstrate that the basement and the Arcadia South building above it are highly integrated. He also referred me to sheet 31 of Survey Plan 309210 which shows Arcadia South, marked as ‘Tower B’, in a lateral aspect diagram, as consisting of 14 levels above the podium, two ground floors and four basement levels.
  3. [88]
    Further evidence, relied upon by the Commissioner to establish that the basement levels were always intended to be integrated with the building that became Arcadia South, concerns the car parks allocated to the owners of units in Arcadia South. A request to the Queensland Titles Registry to record a new Community Management Statement for the West Village project dated 27 October 2021 is contained within exhibit 1.[40] It sets out allocation of a specific car park to the owner of each lot, and in particular, the allocation of a car park to the owner of the lot purchased by Ms Vink.[41]
  4. [89]
    Finally, in the Commissioner’s submissions on the integration of the basement with Arcadia South, Mr Fawcett referred to the evidence by Mr Seguchi who said that the basement was intended to be part of the building above it, but not before a decision was made about whether the building was to be either residential or commercial in content.
  5. [90]
    Mr Fawcett posed his own rhetorical questions to advance the Commissioner’s submissions. He asked what the position would be if the type of building that Arcadia South was intended to be changed, during the course of construction, from commercial in content to residential?[42] He submitted that the question about the meaning of the ‘construction commencement date’ becomes more uncertain, leading to decisions made on an application for a Grant to become more arbitrary and causing uncertainty for the Grant scheme.
  6. [91]
    Responding to a hypothetical example raised by Mr Butler on behalf of Ms Vink, of residential units constructed on top of a railway station, Mr Fawcett submitted that a purchaser of a unit of that kind could never be eligible for the Grant, because the excavation and site preparation works for a contract for purchase of a new home of that kind would have been started when the railway station was built.

The Commissioner’s reliance on the Tribunal’s decision in Psujek

  1. [92]
    The Commissioner placed reliance on an earlier decision of the Tribunal in Psujek v Commissioner of State Revenue,[43] on the basis that the decision is ‘on all fours’ with Ms Vink’s, and indistinguishable from application in her case.
  2. [93]
    The Psujeks had also applied for the Grant. The key facts were relevantly identical to Ms Vink’s case, in that the Psujeks contracted to buy a residential unit ‘off the plan’ where the reason for refusal of the grant by the Commissioner was that the excavation and site preparation works for the building concerned started before 4 June 2020. Also similarly to Ms Vink’s case, the tower which contained the residential unit the Psujeks had contracted to buy off the plan was constructed on an above-ground slab comprising part of a project for the Montague Markets project (commercial and retail section) also located at West End, Brisbane. The above-ground slab was constructed prior to 4 June 2020.
  3. [94]
    Also similarly to Ms Vink’s case, in Psujek, the residential building was part of a staged development with the basement level, of course, constructed first, with the lots for the residential unit that the Psujeks purchased created after 4 June 2020 by preparation of a building management statement for residential lots. Only after the basement and slab stage being constructed was a decision made to construct the residential building, after 4 June 2020.
  4. [95]
    In Psujek, the Tribunal did not accept the submission made on behalf of the Psujeks that the staged nature of the development in that case pointed in their favour for eligibility for the Grant. The Tribunal took the view that the Commissioner was not required to take account of the type of development, but rather to look at the construction in its entirety and to consider whether or not the time frame for the construction on the property fell within the eligibility time frame.[44]
  5. [96]
    The Tribunal also took into account the beneficial purpose of the legislation that provided for the Grant, but also that the legislation was non-discretionary, in order to contain the benefit that was intended so there could be some constraints on the payments.[45]
  6. [97]
    The end result was that the Tribunal affirmed the decision made by the Commissioner to refuse the grant. As well as the reasoning set out above, the Commissioner relied on the decision in Psujek, as a decision which I should follow in this case, given that one of the objects of the QCAT Act, in s 4(d), is that the Tribunal must ensure that ‘like cases are treated alike’.

Submissions in reply on behalf of Ms Vink

  1. [98]
    On behalf of Ms Vink, Mr Butler KC made five points of reply to the Commissioner’s submissions.
  2. [99]
    First, on the question of which of the Administrative Directions applies, Mr Butler reiterated that if it is necessary for the Tribunal to decide on the basis of the difference in the versions, that the first version in time should apply. The reason for that proposition is that as at the date of commencement of the second version, Ms Vink had an accrued right to have her application decided on the first version. He cited the decision of Azevedo[46] in support of that proposition, in that a right to a benefit will accrue, in a legislative context where there is no discretion in the decision-maker, but simply criteria facts to be established, which entitled the applicant to the benefit.           Mr Butler submitted that is the case here, where the Grants Act provides that once the relevant factual criteria have been satisfied, the Commissioner ‘must authorise the payment of a [Grant]’.[47]
  3. [100]
    Mr Butler takes issue with the submission made on behalf of the Commissioner that there was a ‘contrary intention’ in the second Administrative Direction, that it should apply instead of the accrued rights continuing in effect, because of a combination of    s 7 and s 20 of the AIA. He submitted that there is content in the second Administrative Direction which points in the opposite direction of it displaying a contrary intention to the otherwise continuation of accrued rights of applicants for the Grant made prior to the commencement of the second Direction. He relied on new content in the second Administrative Direction under the heading ‘Background’ which requires applicants for the grant in Queensland to agree to the terms and obligations set out in the second Administrative Direction as a condition of payment of the grant.[48] On the other hand, I note that this requirement was contained in the Grants Act already, as a matter of law, in s 25Q(2) which provides that an application for the Grant must comply with the Administrative Direction. An applicant is only entitled to the Grant if the applicant complies with the eligibility criteria for the Grant under the Administrative Direction.
  4. [101]
    The second point of reply made on behalf of Ms Vink is that the same outcome should apply, whichever version of the Administrative Direction has legal effect in application to Ms Vink’s application; that is, she should be entitled to the Grant because the relevant ‘construction commencement date’ in her case was that the work on Arcadia South only commenced after she signed her contract on 7 December 2020.
  5. [102]
    Mr Butler submitted that the first example in the footnote to the definition of ‘construction commencement date’ which was inserted in the second Direction assists Ms Vink’s case. That example is that for an off-the-plan purchase of a new stand-alone house in a development estate, the construction commencement date is when excavation and preparation of foundations for the particular new home starts, as opposed to general excavation and site preparation for the preceding broader development. He submitted that the example has a ‘horizontal’ aspect of site works being spread out across the width of the site, but the example is also analogous to the ‘vertical’ aspect, of preparatory site works being conducted below a building which is constructed on top of the preparatory site works. That, he submitted, excludes the preparatory works from the date when excavation and site preparation works occur, for the definition of ‘construction commencement date’.
  6. [103]
    The third point of reply on behalf of Ms Vink was in response to the documents referred to by the Commissioner which described Arcadia South as building 6 for the West Village project, which include the basement and car parks as an entitlement on the part of the owner of a unit. Mr Butler submitted that it was, of course, necessary for Arcadia South to have basement works and car parks constructed, but there was no certainty that building 6 was ever going to be built, relying on the evidence of       Mr Seguchi.
  7. [104]
    The fourth point of reply concerned the application of the Tribunal’s previous decision in Psujek. Mr Butler submitted that Psujek was wrongly decided. He submitted that the decision was made ‘on the papers’, without the benefit of the detailed submissions that were made by counsel for both parties in this case.
  8. [105]
    Alternatively, Mr Butler sought to distinguish Psujek, for several reasons. In               Ms Vink’s case, he submitted that there is a bundle of documents, that he had referred to in his submissions in chief, that distinguish works in the basement from works for Arcadia South itself. He also relied on Mr Seguchi's evidence that Arcadia South may never have been built, and an internal certificate approving the construction of Arcadia South was required.
  9. [106]
    The final point of reply was a submission made on the registered survey plan which is exhibit 5. Mr Butler submitted that Arcadia South when built was only 14 levels, and not the possible 22 levels proposed when the survey plan was prepared.

Consideration

  1. [107]
    I agree with the submissions made on behalf of the Commissioner, on the correct meaning and application of the key expression ‘construction commencement date’. In my opinion, the text of the definition requires focus on the date when the excavation and site preparation works start, for a contract for the purchase of a new home. In my view, that does require a functional examination of the excavation and site preparation works for a contract of that kind.
  2. [108]
    Ms Vink’s contract was for the purchase of a residential unit in Arcadia South, to take effect, in practical terms, allowing her to live in the unit, when the building was constructed. It is, however, clear to me on the facts that the excavation and site preparation works for Arcadia South had been completed by November 2019, when the concrete slab on which Arcadia South was located was completed. The Form 16 Inspection Certificate for the Site-wide Basement, referred to in paragraph [80] above, makes clear that the structural elements inspected for that certificate cover foundational work for building 6, which became Arcadia South.
  3. [109]
    I think that there is merit in the submission made on behalf of the Commissioner that the difference in the component paragraphs in the definition of ‘contract commencement date’ offers some guidance on the interpretation of the applicable paragraph which is paragraph (a). That is, paragraphs (b)-(d), for each of the types of contract referred to in those paragraphs, operate for the meaning of ‘construction commencement date’ on the date when the category of work ‘under the contract starts’. By contrast, paragraph (a) does not contain that point of reference, which makes clear that the focus of the ‘construction commencement date’ under paragraph (a), by way of contradistinction, is on when the ‘excavation and site preparation works’ for the eligible transaction start. In my opinion, that supports an interpretation of paragraph (a) that the correct focus should be on the physical, functional aspect of the excavation and site preparation works.
  4. [110]
    I acknowledge the beneficial purpose of the grant expressed in the Administrative Direction itself, as well as the national agreement. However, my review of the relevant authorities on the effect of taking into account the purpose of legislation results in an outcome that the purpose of a legislative provision does not replace, overcome or overwhelm the text of a legislative provision that is clear in its application. In my opinion, the facts are clear that the excavation and site preparation works for Arcadia South were done in the construction of the Site-wide Basement. Those works were completed in November 2019, which is prior to the ‘commencing date’ for works of that kind to be eligible for the Grant, which must be after 4 June 2020.
  5. [111]
    My view is supported by the evidence given by Mr Seguchi in cross-examination, that the Site-wide Basement does form the foundations for Arcadia South, and that the Site-wide Basement was designed to support a building above it, which came to be Arcadia South. That was the building in respect of which Ms Vink signed a contract to purchase a residential unit.
  6. [112]
    Even if it be the case that Arcadia South is a separate building from the Site-wide Basement, in my opinion, that is not determinative of the correct interpretation and application of the definition of ‘construction commencement date’. That definition does not speak in terms of whether one building is separate for another, but instead requires a physical functional assessment of the relevant excavation and site preparation works applicable to a contract for the purchase of a new home.
  7. [113]
    For the same reason, in my view it does not matter, for the correct and preferable decision under the Grants Act and in application of the Administrative Direction, that as at the date of construction of the Site-wide Basement, Arcadia South may never have been built, at least as a residential building. The fact is that Arcadia South was constructed as a residential building, and as a physical fact, the excavation and site preparation works had been undertaken and completed for Arcadia South through the Site-wide Basement before 4 June 2020. That fact is supported by the evidence relied upon by the Commissioner in the Form 16 certificate of approval for the Site-wide Basement being designed to support ‘building 6’ which became Arcadia South.
  8. [114]
    I find that it is more likely than not that a building of some type would have been constructed on top of the Site-wide Basement, at some point in time. Not to construct a building of multiple levels on the site of Arcadia South would have represented an inexplicable waste of land and building and construction in the form of the Site-wide Basement, designed as it was, to support a building at least of the dimensions of Arcadia South on top of it.
  9. [115]
    The purpose of the Grant is satisfied in respect of a contract for the purchase of a new home, which is a residential unit, where the excavation and site preparation works for the building concerned commence after 4 June 2020. However, the Grant is not universal in application               to enable every residential building built after 4 June 2020 to qualify for the Grant. The purpose of the grant is expressly ‘time-limited’. Meaning must be given to the text of the definition of ‘construction commencement date’ in paragraph (a), on the date when excavation and site preparation works start, which, in my view, should correctly be read as words of qualification on eligibility for the Grant. Effect must be given to words of qualification, and indeed, in this case, they are part of the context in which the Grant was available.
  10. [116]
    Moreover, the overall purpose of the Administrative Direction, to provide a stimulus to the building industry was arguably better served, if a Grant was available only for ‘greenfield’ work where no earlier excavation and site preparation works had been done prior to 4 June 2020, or even ‘brownfield’ sites which required new excavation and site preparation works, for example, involving demolition of an existing house, followed by excavation and site preparation works for the foundations of a new residential building, such as a unit block. Stimulus to the building industry was better served, in those examples, by eligibility for the Grant for ‘bottom to top’ construction in which, for example, earthmoving contractors received stimulus.
  11. [117]
    The definition of ‘construction commencement date’ does not say that work is eligible for a grant if a ‘substantial part of the construction’ takes place after 4 June 2020. The definition has within it a dividing line, which is the date when excavation and site preparation works start, for a contract for the purchase of a new home.
  12. [118]
    Mr Butler submitted that if the Commissioner is correct in the interpretation of the ‘construction commencement date’ reflected in the decision under review, this will mean that no purchaser of a residential unit in Arcadia South will qualify for the Grant. However, that is the outcome of the sequencing through which the developer developed the West Village site. Certainly, there would have been efficiencies in constructing the Site-wide Basement for the entire site even before final decisions were made about the intended use to be made for whatever buildings were eventually constructed on top of the Site-wide Basement. Those efficiencies extended to the Site-wide Basement being designed to support whatever buildings were to be constructed on it. Efficiencies in that sense would have enured to the purchasers of the units constructed above the Site-wide Basement, in the form of pricing which reflected the cost of constructing the Site-wide Basement, as a whole, instead of piecemeal, for each building to be constructed above.
  13. [119]
    What would have made poor sense would be to have built some form of basement covered by a concrete slab, only to be demolished when the time came to construct a building on top of it. However, one of the consequences of those efficiencies is that the excavation and site preparation works for the site for Arcadia South were done prior to 4 June 2020, instead of when the construction work began for Arcadia South on top of the Site-wide Basement.
  14. [120]
    On the question of which version of the Administrative Direction applies, in my decision, it does not matter which version applies, because I base my decision on the definition of ‘construction commencement date’ which did not change between versions. The only relevant change was that the footnote for the definition was inserted in the second version, setting out some examples of how the definition applies. It has not been necessary for me to make my decision on the basis of the footnotes.
  15. [121]
    However, if it was necessary for me to decide which version applies, in my opinion,  the better view is that the second version applies. On the assumption that the Administrative Direction is a ‘statutory instrument’[49] which makes the Administrative Direction part of the Grants Act, for the purposes of application of s 20 of the AIA, the starting position is that amendment of the Administrative Direction does not affect a right or privilege acquired or accrued under the Grants Act prior to the amendment of the Administrative Direction.
  16. [122]
    However, the effect of s 20 is always subject to being displaced by a contrary intention appearing in any Act.[50] In my view, there is a ‘contrary intention’ to the otherwise effect of s 20 of the AIA, contained in s 60(2)(b) of the Grants Act, that the Tribunal must decide their review of a decision on a grant ‘in accordance with the same law that applied to the making of the original decision’. In my opinion, s 60(2)(b) means the law that governs the criteria for the Grant, which is in the Grants Act itself, rather than preserving the effect of s 20 of the AIA, which does not contain the criteria for the Grant.
  17. [123]
    In my opinion, the first example set out in the footnote does not assist Ms Vink, in the way Mr Butler submitted that it did. I do not accept the analogy of the ‘horizontal’ aspect of the example as being applicable in a ‘vertical’ sense. The example specifically contemplates purchase of a new stand-alone house in a development estate. It does not contemplate a vertical construction of a residential unit block above pre-existing foundations.
  18. [124]
    In my opinion, what the first example is meant to clarify is that, in a broadacre residential subdivision, it will be common for the developer to install sewerage and water headworks as part of the subdivision before any lots are sold. The pre-existing sewerage and other service works are commonplace and can be identified by a length of Polyvinyl chloride piping protruding above the ground. In my opinion, the purpose of the example is to exclude works such as that from ‘excavation and site preparation works’ for a contract for the purchase of a new home, so that a purchaser of a lot with those headworks in existence is not disqualified from the Grant.
  19. [125]
    My decision is consistent with that of the Tribunal in Psujek, although I have arrived at my conclusion independently of that decision. However, I do find that the reasoning in that decision is applicable in the present case and the facts are relevantly indistinguishable from the present case.
  20. [126]
    For all of these reasons, the correct and preferable decision is to confirm the decision under review, which is that Ms Vink was not entitled to the Grant. I therefore order that the application for review be dismissed and I confirm the decision under review.

Costs

  1. [127]
    In the Commissioner’s written preliminary submissions, filed on 14 February 2023, as well as the Commissioner submitting that the Tribunal should confirm the objection decision made on behalf of the Commissioner, the Commissioner also submitted that it was appropriate that no order be made as to costs. That submission was obviously made on the basis of the Commissioner being successful in the review, which has been the case.
  2. [128]
    The default rule for costs in a Tribunal proceeding, contained in s 100 of the QCAT Act, is that each party must bear their own costs. However, s 102 also provides that the Tribunal may make an order requiring a party to pay costs of the other party if ‘the interests of justice’ require the Tribunal to make an order for costs.
  3. [129]
    To the extent that success in a proceeding is a factor that may be taken into account in the list of factors contained in s 102(3) of the QCAT Act, in the superior courts of Queensland, such as the Supreme and District Courts, the usual costs rule would be that the party which has been successful is the party entitled to costs. To the extent applicable under s 102, only the Commissioner would be entitled to costs in this case. However, given that the Commissioner submits that the appropriate order is that there be no order for costs, even in the event of success, I will not make any order for costs.

Footnotes

[1]  Under chapter 2, part 1, division 3 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’).

[2]  On an objection by Ms Vink to the ‘original decision’ to refuse the Grant, under s 57 of the Grants Act.

[3]  Section 20 of the QCAT Act.

[4]  Defined in s 60(5) to be the decision of the Commissioner that was the subject of the relevant objection.

[5]  See p 19 of the statement of reasons (‘SOR’) and attached documents filed in the Tribunal by the Commissioner under s 21(2) of the QCAT Act. That bundle of documents was exhibit 1 in the hearing.

[6]  The ‘Minister’ is the Minister who administers the Grants Act – see s 33(2)(a) of the Acts Interpretation Act 1954 (Qld) (‘the AIA’).

[7]  Other ‘Eligible transactions’ include, in paragraph (b) a ‘comprehensive home building contract’, and in paragraph (c), a ‘substantial renovation contract’. Neither of those categories are relevant in this case.

[8]  There are some differences in the text of paragraph 1(a) between the first and the second Administrative Directions concerning the timing of when the ‘construction commencement date’ must commence after 4 June 2020. Neither party contended that there was any material difference in the respective clauses 1(a) for the purposes of this review.

[9]  Exhibit 3 before the Tribunal.

[10]  Page 169 of the s 21 SOR documents. That page is an attachment to a letter from the solicitors for      Ms Vink to the Commissioner dated 24 January 2022, directed to supporting the application made by a total of seven purchasers of lots in Arcadia South.

[11]  Contained in exhibit 1, the SOR material, commencing at p 51.

[12]  Page 96 of the SOR material shows the car park for the lot purchased by Ms Vink (lot 51103) being allocated car park C630. Page 107 is a plan of basement level 3 which shows the car park allocated to Ms Vink, and the lift which would travel from basement level 3 to Arcadia South.

[13]  Affidavit deposed to on 3 August 2023 and filed on 4 August 2023.

[14]  Commencing at p 529 of exhibit 1.

[15]  Paragraph 4 under the heading ‘Purpose’, contained in p 530 of exhibit 1.

[16]  Paragraph 13(b) under the heading ‘Outcome’, contained on p 531 of exhibit 1.

[17]  (1998) 194 CLR 355.

[18]  Compare the provisions of s 14D of the AIA, applicable to statutory instruments because of s 14(1) read with schedule 1of the Statutory Instruments Act 1992 (Qld).

[19]  (2017) 262 CLR 362, at [14] (‘SZTAL’).

[20]  [2006] FCA 813, at [53], per French J, as His Honour then was before appointment as Chief Justice of the High Court.

[21] The Laws of Australia, Thomson Reuters, paragraph [25.1.4820].

[22]  Form 16 certificate dated 5 November 2019.

[23]  Form 12 ‘Aspect Inspection Certificate’ dated 29 September 2021.

[24]  (2009) 239 CLR 27 especially at [47].

[25]  (2014) 254 CLR 1, at [29].

[26]  [2022] QCAT 342 (‘McCarthy’).

[27]  At paragraph [5].

[28]  [2024] QCAT 394 (‘Ashton’).

[29]  At paragraph [52].

[30]  (1992) 106 ALR 683 at 700, French J as His Honour then was.

[31]  Under paragraph 39 of the second version of the Direction.

[32]  Commencing at p 175 of the SOR bundle.

[33]  Special Conditions ‘HomeBuilder Grant’, clause 1 at p 258 of the SOR bundle.

[34]  SOR bundle, p 168.

[35]  Commencing in the SOR bundle at p 131.

[36]  SOR bundle, p 136 ‘GF Core Walls’, ‘B1-GF Ramp’, ‘GF-Upper Ground Core Walls’, p 137, ‘Podium Slab’, ‘Podium-L1 CW.2 and CW.3’, ‘Podium Pour’ and so on, p 139, ‘Podium Lobby Infill Slab’, ‘Podium Mezzanine Bondek and Stairs Marked Up on Plan’, ‘Podium Bondek Slab’.

[37]  Survey Plan 309209 commences at p 277 of the SOR bundle.

[38]  At p 290 of the SOR bundle.

[39]  SOR bundle, p 186.

[40]  Commencing at p 50.

[41]  Ms Vink purchased lot 51103 which p 96 of the SOR shows was allocated carpark C630. That car park is shown on p 107 of the SOR bundle being a description of the car parks contained in basement level 3. Mr Fawcett also placed reliance on part of the plan on p 107 showing lifts from the car park to the residential units above.

[42]  Which I take to mean raises a question in application of the definition of ‘construction commencement date’ about the date when excavation and site preparation works start for a building, the content of which changes from commercial to residential purposes.

[43]  (‘Psujek’), unreported, and reasons for decision given orally on 8 March 2023, Tribunal reference GAR221-22. The Commissioner obtained a transcript of those reasons for decision.

[44]  Page 10, lines 3-10.

[45]  Page 10, lines 34-45.

[46]  At p 699.

[47]  Section 25R(1) of the Grants Act (added emphasis). See also s 25T which provides that a Grant authorised by the Commissioner ‘must be paid, to the applicant for the Grant and in the way stated in the [Administrative Direction]’. The key eligibility criterion in the Grants Act in s 25Q(3)(a) is if the applicant complies with the eligibility criteria for the Grant under the Administrative Direction.

[48]  Page 521 of the SOR bundle.

[49]  There is a good argument that the Administrative Direction is a ‘statutory instrument’ under the Statutory Instruments Act 1992 (Qld) (‘SIA’). It appears to me that the Administrative Direction is an instrument made under a power conferred by an Act, namely the Grants Act, within s 7(2)(c) of the SIA - see the definition of ‘home builder direction’ contained in the Dictionary (the schedule) to the Grants Act. Secondly, the Administrative Direction appears to me to be a ‘notification of a public nature’, under s 7(3) of the SIA since it notifies any member of the public about eligibility for the Grant, and, under the Grants Act, is legally binding in nature.

[50]  Section 4 of the AIA.

Close

Editorial Notes

  • Published Case Name:

    Vink v Commissioner of State Revenue

  • Shortened Case Name:

    Vink v Commissioner of State Revenue

  • MNC:

    [2024] QCAT 448

  • Court:

    QCAT

  • Judge(s):

    Member Sammon

  • Date:

    11 Oct 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
ADCO Constructions Pty Ltd v Goudappel & Anor (2014) 254 CLR 1
2 citations
Jump To
Cite 1 - (2014) 254 CLR 1
Cite 2 - (2014) 254 CLR 1
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27
2 citations
Jump To
Cite 1 - (2009) 239 CLR 27
Cite 2 - (2009) 239 CLR 27
Ashton v Commissioner of State Revenue [2024] QCAT 394
2 citations
Jump To
Cite 1 - [2024] QCAT 394
Cite 2 - [2024] QCAT 394
Azevedo v Secretary, Department of Primary Industries and Energy (1992) 106 ALR 683
2 citations
Jump To
Cite 1 - (1992) 106 ALR 683
Cite 2 - (1992) 106 ALR 683
City of Wanneroo v Australian Municipal [2006] FCA 813
2 citations
Jump To
Cite 1 - [2006] FCA 813
Cite 2 - [2006] FCA 813
McCarthy & McCarthy v Commissioner of State Revenue [2022] QCAT 342
2 citations
Jump To
Cite 1 - [2022] QCAT 342
Cite 2 - [2022] QCAT 342
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
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362
2 citations
Jump To
Cite 1 - (2017) 262 CLR 362
Cite 2 - (2017) 262 CLR 362

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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