Sandhu v Commissioner of State Revenue
[2024] QCAT 511
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- Sandhu v Commissioner of State Revenue[2024] QCAT 511
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Sandhu v Commissioner of State Revenue[2024] QCAT 511
Sandhu v Commissioner of State Revenue[2024] QCAT 511
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Sandhu v Commissioner of State Revenue [2024] QCAT 511 | |
PARTIES: | gursharan singh sandhu (applicant) v commissioner of state revenue (respondent) | |
APPLICATION NO/S: | GAR645-21 and GAR472-22 | |
MATTER TYPE: | General administrative review matters | |
DELIVERED ON: | 18 November 2024 | |
HEARING DATE: | On the papers | |
HEARD AT: | Brisbane | |
DECISION OF: | Member Gordon | |
ORDERS: |
| |
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – review of decision to refuse payment of First Home Owner Grant and for the repayment of the Regional Home Building Boost Grant – decision made on the basis that the house had been occupied by Airbnb guests or on other short-term tenancies for about two years before the purchase – how the expression ‘has not been previously occupied or sold as a place of residence’ should be construed – whether occupation must be as a place of residence – whether residence requires some long term commitment by the occupier – whether the house was a ‘new home’ when purchased Acts Interpretation Act 1954 (Qld), s 14A, s 14B, 32CA First Home Owner Grant and Other Home Owner Grants Act 2000 (Qld), s 5, s 6, s 49, s 56, s 59, s 60 Human Rights Act 2019 (Qld), s 13, s 48, s 58 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20 Connor Hunter (A Firm) v Keencrest P/L & Ors [2009] QCA 156 Hammond v Commissioner for ACT Revenue (Administrative Review) [2015] ACAT 12 Hiley v Chief Commissioner of State Revenue [2009] NSWADT 133 PJD Group Pty Ltd t/as Esk Caravan Park v Both & Ors [2017] QCATA 94 Queensland Building and Construction Commission v B & L Constructions Qld Pty Ltd [2023] QCATA 71 Taylor v The Owners –Strata Plan No 11564 [2014] HCA 9 Vie Management Pty Ltd (Receivers and Managers Appointed) (In Liquidation) v Body Corporate for Gallery Vie CTS 37760 [2015] QCAT 164 | |
APPEARANCES & REPRESENTATION: | This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) | |
REASONS FOR DECISION
- [1]This is an application to review two decisions made by the Commissioner of State Revenue about home owner grants, that is:
- A decision to refuse payment of the First Home Owner Grant, now on review in GAR645-21.
- A decision to require repayment of the Regional Home Building Boost Grant, now on review in GAR472-22.
- [2]The two decisions were made in respect of a house in regional Queensland purchased by the applicant Gursharan Singh Sandhu and his wife in December 2020 pursuant to a contract made in October 2020. The Commissioner made the decisions on the basis that the house had previously been occupied as a place of residence because it appeared to have been let to Airbnb guests or on other short-term tenancies for about two years before the purchase. Therefore the house was not a ‘new home’ as defined in the relevant statute, that is the First Home Owner Grant and Other Home Owner Grants Act 2000 (Qld) (FHOG Act) or in a direction made under the Act.
- [3]For the First Home Owner Grant, the relevant statutory provision was that it was payable only for an ‘eligible transaction’. Such an ‘eligible transaction’ included:[1]
a contract made on or after 1 July 2000 for the purchase of a new home in the State
- [4]A contract was one for the purchase of a new home if:[2]
the contract is a contract for the acquisition of a relevant interest in land .. on which a new home .. is built
- [5]‘Home’ was defined as:[3]
A home is a building, fixed to land, that –
- may lawfully be used as a place of residence; and
- is a suitable building for use as a place of residence.
- [6]‘New home’ was defined as:[4]
A new home is a home that –
- has not been previously occupied or sold as a place of residence; or
- is a substantially renovated home.
- [7]A home is a ‘substantially renovated home’ if:[5]
- the home is the subject of a contract for the purchase of the home; and
- the sale of the home under the contract is, under the A New Tax System (Goods and Services Tax) Act 1999- (Cwlth), a taxable supply as a sale of new residential premises as defined under section 40-75(1)(b) of that Act; and
- the home, as renovated, has not been previously occupied or sold as a place of residence.
- [8]There is no suggestion that the house was a substantially renovated home.
- [9]The second decision was that a Regional Home Building Boost Grant of $5,000 should be repaid. This grant was given to purchasers of a new home or who commenced building a new home in regional Queensland where the contract was made between 4 June 2020 and 21 March 2021. Conditions for the payment of the grant were contained in Part 3A of the FHOG Act and in a direction made under the Act by the relevant Minister. The direction defined an ‘eligible transaction’ for the payment of the Regional Home Building Boost Grant as being:[6]
a contract for the freehold purchase of a new home in regional Queensland, if the commencement date is between 4 June 2020 and 31 March 2021 (both dates inclusive)
- [10]‘Commencement date’ was widely defined to include the date of a contract to purchase a new home or to have a home built. Hence the contract of purchase in this review was an eligible transaction if the house was a ‘new home’.[7]
- [11]The direction defined a ‘new home’ in the same way as for the First Home Owner Grant.[8]
- [12]The Commissioner was given power by the FHOG Act to require repayment of the Regional Home Building Boost Grant if it had been paid in error.[9]
- [13]It can be seen from these provisions that the issue for the Commissioner in both decisions was whether the house had ‘been previously occupied or sold as a place of residence’.
The meaning of ‘been previously occupied or sold as a place of residence’
- [14]In the expression ‘been previously occupied or sold as a place of residence’, it seems clear that the word ‘previously’ is a reference to the time before the contract of purchase referred to in other sections and paragraphs dealing with the eligibility criteria.
- [15]The expression requires two tests to be applied when considering a grant applications of the type here. The second test is much easier to understand than the first. It is whether prior to the grant applicant’s contract of purchase, the dwelling had previously been sold as a place of residence, in other words for use as a place of residence.
- [16]The first test, concerning previous occupation, is quite unclear. There are no authorities in the tribunal to assist. But there is an authority from another jurisdiction.
- [17]The first uncertainty about the expression is whether ‘as a place of residence’ modifies the word ‘occupied’. If it does not, then the first test can be written as:
whether the dwelling has been previously occupied
- [18]If it does, then the test should be written as:
whether the dwelling has been previously occupied as a place of residence
- [19]The importance of this distinction is that (as can be seen below) some case law suggests the word ‘residence’ denotes some permanency. On that basis Mr Sandhu submits that if the house had been occupied only under short term or holiday letting arrangements then he would still be entitled to the grant, because the house would not have been previously occupied as a place of ‘residence’.
- [20]So the second uncertainty about the test is whether ‘place of residence’ means ‘place of permanent residence’ or whether it can include ‘place of temporary residence’.
- [21]That the various possible interpretations are not fanciful can be seen from the website of the Queensland Revenue Office itself. When describing the eligibility requirements for the First Home Owner Grant:
In one place the website says:
the home must not have been lived in or sold as a place of residence at the time of completion
In another place the website says:
A new home is a brand new dwelling that has not been previously occupied as a place of residence or sold as a place of residence.
- [22]Neither of these passages recite the exact wording of the legislation, and they are inconsistent. The first description, that ‘the home must not have been lived in’ shows that the author of that description believed that the words ‘as a place of residence’ did not modify the word ‘occupied’. In other words a grant was precluded merely if the dwelling had been occupied (‘lived in’).
- [23]The Queensland Revenue Office website gives this example:
Established home
Carlos and Lupita have recently moved into their new home, 4 months after settlement. The move was delayed because there were tenants residing in the home under a lease with the previous owner. This home is not eligible because the home has previously been lived in and sold as a place of residence.
- [24]I note that had there been a comma after the word occupied then it would have been clear that ‘as place of residence’ did not modify the word ‘occupied’. The expression would have read:
been previously occupied, or sold as a place of residence
- [25]The absence of the comma means that it could be read either way. This is because a comma in such an expression is optional.
- [26]There are several cases construing the meaning of the expression ‘been previously occupied or sold as a place of residence’ in the context of a sale of a dwelling. Those cases have explained that if a new or substantially refurbished dwelling had previously been sold for lawful use as a dwelling then the grants were not available. This was because only the first purchaser of such a dwelling was entitled to the grant.
- [27]I believe there is only one reported case where the meaning of the expression ‘been previously occupied or sold as a place of residence’ in the context of occupation was in issue. That case was provided to Mr Sandhu and to the tribunal in submissions made on the Commissioner’s behalf. It is a decision by Senior Member Dr T Foley in the ACT Civil and Administrative Tribunal, in Hammond v Commissioner for ACT Revenue (Administrative Review) [2015] ACAT 12.
- [28]Hammond involved almost identical statutory provisions to those in Queensland, and was a review of decisions of the relevant department to refuse the applicant a First Home Owner Grant and a stamp duty concession. The facts were that since its construction in 2006, a unit had been let on various short-term tenancies as a ‘serviced apartment’. Then seven years later in 2013, the grant applicant purchased the unit and claimed the grant and sought repayment of the stamp duty. The Commissioner refused both applications because the unit was not a ‘new home’ as defined.
- [29]On review, the senior member took it that the occupation test in the expression ‘been previously occupied or sold as a place of residence’ was ‘been previously occupied as a place of residence’. The possibility that the occupation test was actually ‘been previously occupied’ (without any reference to residency) was not argued.
- [30]The senior member referred to various authorities about the meaning of ‘residency’ and concluded that it ordinarily meant permanent residency or some long-term commitment to living there. Hence the senior member decided that the temporary residency of the short-term tenants was not as a matter of fact occupation ‘as a place of residence’. The senior member set aside the decision of the Commissioner.
- [31]Should I follow Hammond?
- [32]It is submitted on the Commissioner’s behalf that I should not follow Hammond on various grounds. The strongest of those grounds, I believe, is:
To the extent the purpose of both the Regional Home Building Boost Grant and the First Home Owners Grant is to encourage developers and the building of new residential premises in Queensland, it is inconsistent with that purpose. A construction that promotes the purpose .. ought to be adopted.
- [33]But Mr Sandhu does rely on the case.
- [34]I find it difficult simply to accept Hammond as providing the answer in Queensland to the meaning of the expression ‘been previously occupied or sold as a place of residence’. There are three reasons for this:
- To my mind the occupation test in the expression ‘been previously occupied or sold as a place of residence’ is inherently ambiguous. But in Hammond, having regard to usual meaning of residency as entailing some permanency or long-term commitment to living in the dwelling, the senior member decided there was no ambiguity. The senior member decided that the expression clearly excluded a series of short-term lettings. I am not sure about this because a place of residence could mean a place of permanent residence or it could mean a place of temporary residence or both. I also regard the occupation test in the expression as ambiguous because it is unclear whether a place of residence modifies ‘occupied’. It is at least arguable that the correct test to apply is whether the dwelling had previously been occupied (no reference to residence).
- In the matter before me, it is possible to identify the aim of the Act and the policy behind the provisions being construed with much greater accuracy than in Hammond, and the aim in Queensland seems to be different from that in the ACT. The senior member found that the statutory purpose of the relevant provisions was to ‘encourage and assist home ownership’.[10] Hence even with 7 years of letting as serviced apartments, the grant applicant was entitled to the grant as a first time buyer. But as can be seen below I have concluded that although the statutory purpose of the provisions was to assist first time buyers, the reason why the grants are restricted to new homes was so that grants would not be given for existing homes and to encourage new build by the construction sector.
- The senior member in Hammond seems to have applied the ACT statutory interpretation provisions in a way which differs from the way equivalent, but slightly differently worded, provisions in Queensland should be applied. I consider this further immediately below.
Applying the statutory interpretation provisions
- [35]There are statutory interpretation provisions in the jurisdictions around Australia and there is a Commonwealth version as well. The Queensland provision is in the Acts Interpretation Act 1954 (Qld). The relevant section says:
14A Interpretation best achieving Act’s purpose
- 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.
- Subsection (1) does not create or extend criminal liability, but applies whether or not the Act’s purpose is expressly stated in the Act.
- To remove any doubt, it is declared that this section applies to an Act passed after 30 June 1991 despite any presumption or rule of interpretation.
Example—
There is judicial authority for a rule of interpretation that taxing legislation is to be interpreted strictly and in a taxpayer’s favour (for example, see Partington v AG (1869) LR 4 HL 100 at 122). Despite such a possible rule, this section requires a provision imposing taxation to be interpreted in the way that best achieves the Act’s purpose, whether or not to do so would be in a taxpayer’s favour.
- [36]In Connor Hunter (A Firm) v Keencrest P/L & Ors [2009] QCA 156, McMurdo P confirmed that remarks by Dawson J in Mills v Meeking (1990) 169 CLR 214,[11] applied to section 14A:
As Dawson J explained in Mills v Meeking, a provision like s 14A(1) which requires consideration of the purpose of an Act in interpreting its provisions needs:
"… no ambiguity or inconsistency; it allows a court to consider the purposes of an Act in determining whether there is more than one possible construction. Reference to the purposes may reveal that the draftsman has inadvertently overlooked something which he would have dealt with had his attention been drawn to it and if it is possible as a matter of construction to repair the defect, then this must be done."
- [37]This approach has been endorsed in the tribunal in PJD Group Pty Ltd t/as Esk Caravan Park v Both & Ors [2017] QCATA 94, [41], Acting President Judge Sheridan and Member Allen.
- [38]This means that, unlike in Hammond, I must interpret the expression in a way which best achieves the purpose of the provisions, even in the absence of ambiguity or inconsistency in the provisions. Despite this requirement, it is possible to see that section 14A(1) requires a comparison between possible interpretations. For a statutory provision which has only one possible meaning it seems to me that section 14A(1) would not be engaged at all. But where a statutory provision is ambiguous or obscure or gives a result which is manifestly absurd or unreasonable then section 14A(1) is engaged if another interpretation best achieving the purpose of the Act can be found. But it seems to me that there is a middle ground too, where, as Dawson J said, the draftsman may have overlooked something which is correctable by a different construction. It has been held that this can extend to adding words or omitting words to correct simple grammatical drafting errors which if left uncorrected would defeat the purpose of the provision.[12] But this cannot go so far as to cross the line between construction and legislation.[13] In this respect, there is a difference between an error in drafting or expression (which can be overcome to avoid defeat of the object of the provision), and what appears to be an error in the way the statute seeks to implement a particular policy (which is a matter for the legislature).[14]
- [39]The senior member in Hammond recited the relevant provisions of the Legislation Act 2001 (ACT) concerning statutory interpretation.[15] Like the Queensland version, the ACT version required an interpretation of statutory provisions that would best achieve the purposes of the Act to be preferred to any other interpretation. But in the ACT version, this requirement was stated to be ‘in working out the meaning of an Act’.[16] ‘Working out the meaning of an Act’ was defined in section 138 to mean resolving an ambiguous or obscure provision of the Act, confirming or displacing the apparent meaning of the Act, or finding the meaning of the Act when its apparent meaning leads to a result that is manifestly absurd or is unreasonable, or finding the meaning of the Act in any other case.
- [40]This particular wording, which is not the same as that in Queensland, may have caused the senior member in Hammond to consider it unnecessary to check that the proposed literal interpretation of the expression achieved the purpose of the statute because the expression it was not ambiguous or obscure or and the proposed interpretation did not have an absurd or unreasonable result.[17] So it is possible the senior member considered that there was no ‘middle ground’ when construing the expression – its literal meaning was so clear that no further assistance was required to interpret it.[18]
- [41]To my mind, the occupation test in the expression ‘been previously occupied or sold as a place of residence’ is ambiguous. I think that requiring a degree of permanency in the occupation as a place of residence so that holiday lets should be disregarded is only one way to interpret the expression. Instead, it could have been intended that the dwelling would not be a new home if a person or series or different persons lived there prior to the contract of purchase. If so, giving effect to that intention would be achieved by reading the test as being:
either
been previously occupied
or
been previously occupied as a place of (permanent or temporary) residence
- [42]The first of these does not require any words to be added or removed because it simply treats the ‘or’ in the expression as disjunctive. The second of these does include some added words. Is such an interpretation permissible having regard to the purpose of the Act?
- [43]In that respect the preamble to the Act states that it is:
An Act to encourage and help home ownership, and to offset the effect of the GST on home ownership, by establishing a scheme for the payment of grants to first home owners, and to provide for a scheme for the payment of other particular grants to home owners
- [44]This stated aim does not explain why the First Home Owner Grant and the Regional Home Building Boost Grant are limited to new homes. It does not assist me to identify the particular purpose and therefore the correct interpretation of that limitation.
- [45]As required by section 14A, where there are possible other interpretations, I need to apply the one which best achieves the purpose of the Act. I note in this respect that in the Acts Interpretation Act 1954 (Qld), the word ‘purpose’ is defined as including ‘policy objective’,[19] and so it is justified to look outside the Act for that policy objective.
- [46]Since the expression is ambiguous, this is one of the times when it is possible, under section 14B of the Acts Interpretation Act 1954 (Qld), to consider extrinsic material capable of assisting in the interpretation. In doing so I have considered section 14B(2), and in particular since the expression is inherently ambiguous I do not think it can be interpreted from its ordinary meaning.
- [47]Examples of things I can look at are given in section 14B(3) and include an explanatory note to a Bill, a speech in the Legislative Assembly when introducing the Bill and any other record of proceedings in the Legislative Assembly. But under this section I can look at anything relevant and I am not restricted by the examples.
- [48]In the 2012-13 State Budget it was announced that the First Home Owner Grant in the case of purchasers would be restricted to new homes. In the budget speech Hon TJ Nicholls MP (Treasurer and Minister for Trade) said:[20]
5 First Home Owner Construction Grant
Madame Speaker, the old first home owners grant had well and truly outlived its usefulness. It was simply adding $7,000 to the price of a home. Many economists and many in the construction industry had called for it to be removed and replaced. We have listened and acted.
Having first home owners complete against each other for a limited number of affordable existing homes is not the answer. It just means higher prices.
From tomorrow the Government will replace the current first home owners grant with, a new, bigger “First Home Owner Construction Grant” of $15,000. The new bigger grant will be available to first home buyers who sign up to buy a newly constructed or off the plan house or apartment. Together with the current stamp duty exemption, this means a new home buyer buying a newly built or off the plan home worth up to $500,000 will be $15,000 better off.
We need to address the supply side and do so in a sustained way that gives buyers, and importantly the construction and development industry, certainty over the longer term to borrow, build and invest in new housing products.
This new, bigger grant, together with the Principal Place of Residence Concession, we reintroduced from 1 July 2012, means Queensland is the best State to buy your new home. Our grant is now the most generous in Australia.
These new initiatives invest in Queensland’s bright future and show the benefits of strong economic management and prudent spending.
- [49]A budget paper (Service Delivery Statement) published at the time of the State Budget 2012-13 for Queensland Treasury and Trade portfolio stated:
Revisions to the First Home Owner Grant
Following consideration of the Commission of Audit recommendations, the Government is changing eligibility for the First Home Owner Grant. To further support housing construction, a First Home Owner Construction Grant will be provided in relation to new homes, and the amount will increase from $7,000 to $15,000.
- [50]To give effect to these intentions expressed in the State Budget, an amendment was made to the FHOG Act by the Fiscal Repair Amendment Act 2012 (Qld). The explanatory notes to the Bill which became that Act stated:
First Home Owner Grant Act 2000
Under the First Home Owner Grant Act 2000, first home buyers who have entered into an eligible transaction which has been completed and who satisfy certain eligibility criteria are entitled to payment of a grant of $7,000. An eligible transaction is a contract to purchase or build, or for an owner builder the building of, a home.
As part of revenue initiatives announced in the State Budget, the First Home Owner Grant Act 2000 will be amended to increase the grant to $15,000 for new homes. The increased grant will be available where the commencement date for the eligible transaction is on or after 12 September 2012.
The First Home Owner Grant Act 2000 will also be amended so that, from 11 October 2012, only a contract to purchase or build, and the building by an owner builder of, a new home will be an eligible transaction. The grant will not then be available for the purchase of an existing home.
New home is defined as a home that has not been previously occupied or sold as a place of residence.
- [51]When introducing the Fiscal Repair Amendment Bill to the Legislative Assembly, Hon TJ Nicholls MP (Treasurer and Minister for Trade) stated:[21]
The First Home Owner Grant originally compensated first home buyers for the increase in housing costs due to the goods and services tax, The current consensus is that the grant is a relatively inefficient mechanism for improving home affordability. However, an increased grant for first home buyers purchasing a new home will benefit first home buyers and boost the housing construction sector.
- [52]During the second reading debate for the Bill, Hon. CKT Newman (Premier) said:[22]
To fire up construction we have introduced a new $15,000 grant for first home owners buying a newly constructed home, and there will be no stamp duty on new homes under $500,000. We have reinstated the principal place of residence stamp duty concession, which saves Queensland families up to $7,000 when buying their home. Our construction initiatives have received widespread support from the Property Council, Master Builders, the HIA, Stockland, Dixon Homes and Fraser Coast builder Kerry Campbell, who said—
It is a boost for the building industry and also a great help for first home buyers.
- [53]Some ten years later, amendments to the FHOG Act to add the Regional Home Building Boost Grant were made during the third reading of the Royalty Legislation Amendment Bill 2020, without debate. A third reading explanatory note was created and the relevant part of this contained this passage:
Explanatory Notes for Amendments to be Moved During Consideration in Detail by the Honourable Cameron Dick MP
Title of the Bill
Royalty Legislation Amendment Bill 2020
Objectives of the Amendments
Amendments to the First Home Owner Grant Act 2000
Amendments are to be made to the First Home Owner Grant Act 2000 (FHOG Act) to ensure the necessary legislative provisions are in place to support the proper administration of Queensland’s Regional Home Building Boost Grant (RHBBG) and the Australian Government’s HomeBuilder Grant (HomeBuilder Grant).
On 4 June 2020, the Prime Minister announced the $25,000 HomeBuilder Grant, 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. The Australian Government provides funding for the payment of the grant. States and Territories administer the grant on behalf of the Australian Government in accordance with the National Partnership Agreement on HomeBuilder (NPA).
On 16 June 2020, the Queensland Government announced the RHBBG, which provides a one-off $5,000 grant to eligible owner occupiers who purchase a new home or commence building a new home in regional Queensland between 4 June 2020 and 31 December 2020.
The Commissioner of State Revenue (Commissioner) administers the grants in accordance with administrative directions, and the NPA in the case of the HomeBuilder Grant. These set out the eligibility criteria, application process and ongoing conditions and obligations for applicants. However, for integrity of administration, legislative administration provisions are also required. In particular the Commissioner requires legislative investigation and enforcement powers and it is appropriate that applicants for these grants are provided with legislative objection and appeal rights.
- [54]These papers make it clear that although the grants are to assist first time buyers, the reason why they are restricted to new homes is to stop the grants being paid for existing homes and in this way to encourage new build by the construction sector.
- [55]It is possible to see that where the State gives grants which increase the spending power of purchasers when contracting to purchase off the plan, or engaging a builder to construct a new home, or contracting to purchase a newly built home, this encourages new build by the construction sector. This is because there will be more purchasers able to afford to pay the contract sum.
- [56]It is possible to see that a builder or developer, having finished building a new home, could benefit from letting it on short or long term rentals for a period of time before placing it on the market for sale. This is because the builder has an opportunity to delay sale until the market is more favourable, and in the meantime receive income from the property.
- [57]But it is not possible to see how, if such a builder decides to build a dwelling and to let it out for a while before selling it, a grant given to a purchaser of such a home could encourage new build by the construction sector. This is because in those circumstances the encouragement to construct the new home did not come from any such grant. Also, paying the grant in these circumstances does not achieve the policy objective that the grants should not be paid for purchase of existing homes.
- [58]These consequences apply whether the letting was in the form of a series of short term or holiday lettings, or longer term ones or whether there were a series of tenants or residents, or just one. In other words to achieve the purpose of the statute, it is irrelevant whether there was temporary or permanent residency during the period of time when the property was let after it had been built.
- [59]Taking a purposive approach to the interpretation of the definition of ‘new home’ therefore, I do not think it matters that the occupation here was not one of permanent residency. I think the intention of the legislature, viewed objectively, was to disentitle an applicant for these types of grant if the dwelling was occupied even on a temporary basis, or by a series of short term arrangements or holiday lets.
The Human Rights Act 2019
- [60]In a review of this type the tribunal is acting as a public entity in an administrative capacity and must act and make decisions which do not limit a human right or which limit a human right only the extent permitted, that is by balancing the factors set out in the Human Rights Act, taking into account the reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.[23] It is necessary to give proper consideration to a human right relevant to the decision unless the decision is the only one which could reasonably be made under law.[24] In addition all statutory provisions must, to the extent possible that is consistent with their purpose, be interpreted in a way that is compatible with human rights.[25]
- [61]In this matter one human right which needs to be considered is the right to a fair and public hearing in section 31. This matter was listed for directions and for an oral hearing. At the beginning of the directions hearing after discussion with the parties and with their consent, the matter was relisted for a hearing on the papers after further submissions. I am satisfied that section 31 was satisfied by this process, and that the decision made was fair and justified in a free and democratic society based on human dignity, equality and freedom.
- [62]Another human right to be considered is that in section 24(2) whereby a person must not be arbitrarily deprived of property. This review process is not arbitrary so this human right is not engaged.
- [63]Judging from his submissions Mr Sandhu might wish to rely on section 26 – under which families are entitled to be protected by society and the State, but again I do not think this human right is engaged in this review.
The route to the tribunal and the arguments
- [64]There is a procedure in the FHOG Act for the grant applicant to ‘object’ to the Commissioner about a grant decision, and Mr Sandhu followed this process.[26] Both objections failed. The decision on the objection about the First Home Owner Grant was made on 29 July 2021 and the decision on the objection about the repayment of the Regional Home Building Boost Grant was made on 14 September 2022. Mr Sandhu applied for a QCAT review of the decisions made on the objections.[27]
- [65]In this review, although the tribunal should reach the correct and preferable decision by a fresh hearing on the merits,[28] this must be done by applying the law as at the date of the decision under review[29] and on the basis of the evidence before the Commissioner at the time when the decision under review was made, unless it is necessary in the interests of justice to allow new evidence.[30] The decisions under review are those made when considering Mr Sandhu’s objections.
- [66]
- [67]Mr Sandhu made applications to put additional evidence before the tribunal and I will need to deal with these, but in order to do so, I need to recite his grounds of objection and consider whether it is right to enlarge them, because Mr Sandhu has made many submissions which go beyond his original grounds of objection.
The grounds of objection and how they have enlarged
- [68]Mr Sandhu’s original grounds of objection in GAR645-21 were that the grant should be given because the purpose of the grant was to help those who have worked hard and had used up all their savings and secured a house, and to help with unexpected expenses. He submitted that as ‘Indians and people of colour’ they had worked extra hard.[33] He seemed to be saying that his financial circumstances were such that his 5 year old child was starving and that he might lose the home, so he needed the grant.
- [69]In the email sending those grounds, Mr Sandhu clearly alleged that in making the decision not to give him the grant, he had been discriminated against on the grounds of colour.[34]
- [70]In the submissions made before the tribunal in this review Mr Sandhu has enlarged these grounds considerably. He has criticised the evidence before the Commissioner and on those grounds has submitted that the evidence was insufficient to show that the house had previously been used as a residence and so the decision was wrong. Since these submissions go to the heart of this matter, and the earlier grounds of objection could not possibly succeed (because there is no discretion in making these decisions), and since the respondent has been able to respond to the new submissions, I do order that the more recent submissions can be treated as grounds in this review.
- [71]The grounds of objection in GAR472-22 were wider. In the objection form it was said that the web pages being relied on did not exist. Mr Sandhu said that he was being ‘targeted’ because of his race, and the decision made were just an act of racism.[35] Also in his emails Mr Sandhu described the decision as a ‘robodebt decision’ and said that it was too late to claim repayment of the grant, that he was being harassed due to incompetence, and he was being treated with cruelty on the grounds of race.[36] He said his baby was a victim of unchecked racism by the decision to seek repayment of the grant,[37] and the decision that the house was not a new home was an act of racism and nothing else.[38]
- [72]Mr Sandhu has made other points in submissions in the review before the tribunal. Some of these are new points, that is points not made in the original objection. Picking out the new points which might assist me to reach the correct and preferable decision but ignoring those which will not, the relevant new points are:
- Reliance on the ACT case of Hammond provided by lawyers on behalf of the Commissioner (referred to above) which found that short term lets did not take a dwelling outside the definition of a new home.
- Mr Sandhu says that his household is struggling with cost of living pressure and surging inflation.[39]
And these new points were made in final submissions:[40]
- Mr Sandhu says that his mortgage repayments have surged from $1,600 to $2,400 per month and so repayment of the Regional Home Building Boost Grant would be ‘financially impossible’. Also he has recently been assaulted and this ‘significantly impacted my well being and financial situation’.[41]
- The Commissioner is estopped from requiring a repayment of the Regional Home Building Boost Grant because Mr Sandhu relied on the grant to his detriment, having structured his finances based on the approval of the grant.
- If he is ordered to repay the Regional Home Building Boost Grant this would result in a ‘flood of litigation’ because there would be arbitrary demands for repayment in other cases, and the Queensland Government could have negative publicity.
- [73]It is noticeable that the suggestion that the grant decisions made by the Commissioner were a result of racial prejudice is not repeated in the final submissions, but this suggestion has not been withdrawn.
- [74]On behalf of the Commissioner submissions have been made dealing with all the new points which could possibly have any relevance to the outcome of the review so that will help me to allow the points to be made. (a) and (d) are legal points and ought to be allowed anyway. (b) and (c) provide additional information about Mr Sandhu’s financial circumstances which I am willing to allow. I am also content to allow (e) as a new submission.
The evidence
- [75]The evidence before the Commissioner, relevant to the issue to be decided was:
- The Final Inspection Certificate for the house was dated 6 July 2018.[42] This was more than two years before the applicant’s date of purchase.[43]
- On 14 May 2019 a local business website listed the house describing it as a ‘New Airbnb’ in the area, sleeping up to 10 guests a night, with a link to a listing of the house on the Airbnb website.
- A print-out done on 23 June 2021 appears to be a historical listing of the house on a hotel website showing the house as available fully furnished including kitchenware and linen and with all utilities connected and a gardener, either for ‘short term self isolation rental or we can also offer longer term rental’, it having been decided ‘to open up the rental options on our Airbnb properties’. Taking up the offer could be done by direct contact with the host. The listing included two reviews wholeheartedly praising the property and the host.[44]
- Print-outs done on 10 May 2021 and on 28 July 2021 appear to be a historical listing of the house for sale on a real estate site.[45] The description was ‘This property is currently operating as a highly successful 5 star superhost rated Airbnb due to its convenient location and sleeping capacity. Occupancy rates are available on request.’ Contact details were given for the host. Airbnb online material showed that in order to become an Airbnb Superhost, the host must have completed at least 10 trips or 3 reservations that total at least 100 nights.
- The purchase contract of 27 October 2020 included ‘television, fridge, study desk, large bookcase, master bedroom suite – queen bed, mattress, bedside tables, mirror and chest drawers, bunk bed (1) plus 2 x single mattresses, tv cabinet, aqua 2 and 3 seater lounge, coffee table, dining table and 6 chairs and buffet, outdoor table and 6 chairs’.
- [76]Mr Sandhu had attempted to provide the Commissioner with evidence tending to show that the house had not previously been used as a residence. There were letters purportedly from the host in the above material.[46] For the first decision under review only the first letter was before the Commissioner. It stated that the house had ‘not been previously lived in or occupied or sold as a place of residence’.[47] For the second decision under review two further letters were before the Commissioner. Both repeated what was said in the first letter but the second letter added ‘In addition I don’t recall this particular property put on Airbnb’.[48] This latter statement directly contradicts the online material provided by the same person. I have to decide which version to accept.
- [77]In considering this, I note that two of the letters are addressed ‘to whom it may concern’ and one refers to ‘my previous vendor statements’. At one time, referring to the letter or letters, the Commissioner asked Mr Sandhu for permission to contact the vendor for further information, saying that in the alternative the decision could be made on information and documents received to date. Mr Sandhu did not give that permission, which explains why the source or meaning of the letters was never confirmed.[49]
- [78]Also in considering this I must accept that the respondent did find the online material about the house referred to above. Mr Sandhu denies the material existed because he could not find it when he looked. He implies that the material was fabricated. If this were true it would mean that one or more employees in the relevant department had forged documentation in order to refuse the grant, which is obviously very unlikely. It is much more likely that the material was removed from the internet between being found by the department and a later date when Mr Sandhu looked. He also says that there could be a mix up with another address in the same street but that is patently not the case because the online real estate and hotel agency material give the address of the house.
- [79]So there are four realistic possibilities about the letters:
- The letters were not from the host at all.
- The letters were from the host but the host forgot that the house had been lived in, or had been on Airbnb.
- The letters were from the host and the host was well aware that the house had been offered for short or long term rental and had received two enthusiastic reviews, and that it had been on Airbnb, but the host was willing to pretend to whoever might receive the letters that this was not the case.
- The letters were from the host and the online material about the house being offered for short or long term rental and having received two enthusiastic reviews, and that it had been on Airbnb, was all pretence, possibly to make the house appear more valuable for sale. This would mean that if the offer of occupancy rates was taken up, the host would have had to forge a document showing this.
- [80]If (d) were correct then it would tend to show that the house had not previously been used as a residence, but it is the most unlikely of all the possibilities because it would mean that the house had been left empty for two years and it would not explain why it was sold furnished. There is nothing else to show that (d) might be correct.
- [81]On the above analysis I must give the letters little weight.
Mr Sandhu’s attempt to introduce new evidence
- [82]As has been seen above the tribunal is only able to consider new evidence if the tribunal considers it necessary in the interests of justice to allow new evidence.[50] Because of this restriction, the tribunal gave directions giving time deadlines in which to make such an application and requiring any such application to be supported by submissions identifying the new evidence and explaining its relevance to the issue or issues in question, and permitting submissions from the Commissioner about the new evidence.[51]
- [83]Mr Sandhu made two applications for the tribunal to look at new evidence and they are for me to consider in this review.
- [84]In the first application, Mr Sandhu sought to introduce two documents.[52] These were unsigned statements from people who said they became aware of the house when Mr Sandhu purchased it and Mr Sandhu said these people were ‘part of my buying process’. The first said that the house was purchased as a new home and had never been lived in or occupied or sold as a place of residence. The second said that the house was brand new when purchased. Both said that at no time was the word Airbnb heard or any similar thing. Neither of these documents are any assistance at all in deciding the significance of the material found online by the Commissioner. Since these documents are incapable of affecting the outcome of the review it is not necessary in the interest of justice to admit them in evidence.
- [85]In the second application, Mr Sandhu sought to rely on a letter purporting to have come from Airbnb itself.[53] Following some robust resistance on behalf of the Commissioner, Mr Sandhu withdrew this application at the directions hearing on 23 August 2024. Accordingly I do not have to decide this application.
- [86]With his final submissions, Mr Sandhu sent a statement from someone who said they had witnessed an incident where a delivery driver who could not speak English needed assistance. Mr Sandhu also said that he had been assaulted and he sent a medical report showing the result of the assault. Neither of these documents have any relevance whatsoever to the decision I have to make, and at the time of final submissions it is far too late to introduce any new evidence. I will disregard them.
Conclusion as to whether the house was a new home
- [87]Overall, the evidence that the house had frequently and regularly been occupied on short term lets prior to the purchase is overwhelming. There is evidence that the house was listed as available for rental through an agency or directly with the host. There is evidence in the reviews that such listing resulted in the house being occupied. And there is evidence that there was some substantial use of the property in this way from the description in the particulars of sale that the Airbnb listing was ‘highly successful’ and that occupancy rates could be provided on request. There is evidence in the online material that the house was furnished ready for letting and in confirmation of this, the contract of sale included furniture and other items.
- [88]On the evidence I find as a fact that the house had frequently and regularly been occupied on short term lets. As I have decided above, this is sufficient to take the house outside the definition of a new home in the FHOG Act as I find that as a fact.
- [89]It follows that the Commissioner was right to disallow the application for a First Home Owner Grant and to confirm that decision on 29 July 2021 when considering Mr Sandhu’s objection.
- [90]It also follows that the Commissioner was right to decide that the Regional Home Building Boost Grant was made in error and to confirm that decision on 14 September 2022 when considering Mr Sandhu’s objection.
- [91]There was a second decision about the Regional Home Building Boost Grant, however. Since it had been paid to Mr and Mrs Sandhu the second decision was that repayment would be sought. I now consider whether it is the correct and preferable decision to seek repayment of this grant.[54]
Discretion whether or not to seek repayment
- [92]It is suggested in the submissions made on behalf of the Commissioner that since the Commissioner would not have been ‘empowered’ to pay the Regional Home Building Boost Grant if the eligibility criteria had not been met, then it would be ‘necessary’ to seek repayment.[55] Seemingly for that reason there are no submissions made on behalf of the Commissioner as to whether the correct and preferable decision is to seek repayment of this grant.
- [93]Here it can be noted that one of eligibility requirements for the grant in the direction is that (in the usual case) the applicant must occupy the home as a principal place of residence for a continuous period of 6 months, that period starting within one year of completion of the eligible transaction.[56] A grant paid prior to this eligibility condition being satisfied is paid on the condition that it is satisfied.[57] If the condition is not satisfied the grant is automatically repayable.[58] In such a case it seems to me that the Commissioner has no discretion about whether to seek repayment of the grant.[59]
- [94]But I think that situation is different from the one in the present review. In this review an earlier decision about eligibility based on things that happened prior to that decision, was reversed. In those circumstances, the decision to seek repayment is not automatic. The decision to seek repayment is made under section 47(1) of the FHOG Act. That section uses the word ‘may’:[60]
The commissioner may, by written notice, require an applicant or former applicant for a first home owner grant to repay an amount paid on the application if the amount was paid in error (the error amount).
- [95]There is case law to the effect that in some circumstances the word ‘may’ in a statute ought to be read as ‘must’.[61]
- [96]But in Queensland this is not possible. Section 32CA(1) of the Acts Interpretation Act 1954 (Qld) makes it clear that the use of the word ‘may’ means there is a discretion:
In an Act, the word may, or a similar word or expression, used in relation to a power indicates that the power may be exercised or not exercised, at discretion.
- [97]When considering how this discretion should be exercised, I note that if the grant applicant has knowingly made false or misleading statements or knowingly submitted false or misleading documents then in addition to seeking repayment the Commissioner may impose a penalty of not more than the error amount.[62]
- [98]Mr Sandhu has made some submissions about the exercise of the discretion based on delay, inconsistent decision making, the need for compassion and on many other grounds, but in the absence of submissions from the Commissioner it would be wrong to suggest any common approach other than to say that it is obvious that since the grants come from the public purse the usual result of a payment of a grant in error would be that repayment would be sought. But it is possible to envisage many factors which might influence a decision-maker not to seek repayment.
- [99]Here I shall deal with the points made by Mr Sandhu.
Estoppel
- [100]Here it is suggested that the Commissioner is estopped from seeking repayment of the Regional Home Building Boost Grant. This argument is based on Mr Sandhu’s reliance on the approval of the grant and its payment which induced him to change his financial position so that it would now be unconscionable to seek repayment.
- [101]There is much case law to the effect that the doctrine of estoppel does not apply to prevent attendance to statutory duties, for example where the Commissioner of Taxation is required to make an assessment of tax.[63] This means that even where an indication had been given by a State Revenue authority that an applicant would be eligible for a particular grant, the authority would not be bound by such an indication.[64]
- [102]It seems to me however, that that a decision under section 47(1) whether or not to seek repayment is outside that case law. Parliament has expressly made the decision whether or not to seek repayment on discovering that the grant was paid in error a matter of discretion. So it is not a statutory duty to seek repayment on discovering the error.
- [103]But on Mr Sandhu’s case an estoppel cannot arise anyway. This is because of the timing of the decision. As can be seen below when discussing delay and inconsistent decision making, on 17 May 2021 Mr Sandhu was informed that the application for a First Home Owners Grant was not approved because the house was not a ‘new home’. On 24 May 2021 he was informed that the Regional Home Building Boost Grant was approved. It was obvious from what had happened, or it should have been obvious, that the Regional Home Building Boost Grant was approved in error and therefore was liable to be repaid. This means that Mr Sandhu could not rely on it staying with him and did not do so. Hence its payment was not a representation capable of supporting an estoppel.
- [104]Even if there was any such representation then on the figures no estoppel could arise. Mr Sandhu’s suggestion that he had ‘structured his finances’ based on the approval of the grant is very vague. It cannot be a reference to taking out the mortgage because the grant was approved and paid after the mortgage was taken out. He did say in an email that the $5,000 had been ‘spent’, the family did not have ‘limitless cash’ and he did not have the money to repay the grant.[65] If this is what is relied on to support the plea of estoppel then having regard to the amount involved, it seems very unlikely that he would have altered his financial position by reason of its approval to such an extent that it would be unconscionable for the Commissioner to demand its repayment. This is because the amount is small compared to the purchase price of the house at $470,000 and the mortgage repayments now amounting to $28,800 per annum. There is no other evidence of Mr Sandhu’s financial position but he does work. The material submitted with his final submissions show that he is a delivery driver. He has also said that he has a ‘masters in computer applications’.[66] It is very unlikely that the grant payment of $5,000 made much difference to his financial position. The evidence is insufficient to support a plea of estoppel.
Delay and inconsistent decision making
- [105]On the questions of delay and inconsistent decision making, I note that Mr Sandhu’s application for the First Home Owners Grant was received on 11 March 2021 and was refused on 17 May 2021,[67] on the grounds that the house had been used as an Airbnb letting. Meanwhile on 5 May 2021 Mr Sandhu had applied for the Regional Home Building Boost Grant. There is an internal note showing that a decision was made to recommend the application for approval on 14 May 2021.[68] In accordance with this, the grant was approved and paid on 24 May 2021. The two decisions were therefore inconsistent. There is no explanation why the decision to refuse the First Home Owners Grant made on 17 May 2021 was not picked up a week later on 24 May 2021 when the final decision was made on the Regional Home Building Boost Grant.
- [106]It was not until nearly a year later, on 11 April 2022, that a notice of decision requiring repayment of the Regional Home Building Boost Grant was sent to Mr Sandhu.[69] It may be relevant to understand the reason for the delay. In the decision and statement of reasons on Mr Sandhu’s objection to the decision to seek repayment of the Regional Home Building Boost Grant,[70] it is said that it was discovered that the grant had been paid in error based on ‘compliance activities undertaken by the Commissioner’. In fact, as can be seen above it was known even before the grant was approved that Mr Sandhu was ineligible for the grant.
- [107]Between 24 May and 29 July 2021 the Commissioner was dealing with Mr Sandhu’s objection to being refused the First Home Owners Grant. That objection was formally made on 20 July 2021 and was decided on 29 July 2021. Bearing in mind Mr Sandhu had presented evidence which had to be considered, it was reasonable not to make a decision about the repayment of the Regional Home Building Boost Grant until after the objection decision was made on 29 July 2021.
- [108]An internal memo shows that the objection decision of 29 July 2021 was passed to the team dealing with the Regional Home Building Boost Grant on 30 July 2021 ‘to action the recoupment of the (grant) paid in error’.[71] This was not done efficiently. On 3 November 2021 an ‘adjustment note’ was issued for $5,000,[72] which was effectively an invoice seeking repayment. An internal note shows that the adjustment note was not sent to Mr Sandhu at that time because of an administrative error. According to the note this omission was discovered on 7 April 2022 when an outstanding debt was noticed.[73] The decision letter seeking repayment was eventually sent to Mr Sandhu by email on 11 April 2022 soon after this administrative error was discovered.[74] That email said that the repayment was not due until 11 May 2022 because of the late service and no interest or penalty was being applied.
- [109]What was said about no interest or penalty in the email of 11 April 2022 means that Mr Sandhu was able to keep the $5,000 for some additional months without financial disadvantage. He knew or should have known from the decision of 17 May 2021 that the continued retention of the grant was precarious and that the likelihood was that it would have to be repaid at some time. As it turned out, the delays in seeking repayment just gave him more time to arrange his affairs to repay the grant.
- [110]In these circumstances there is nothing arising from the delay and inconsistent decision making that makes me think that the correct and preferable decision is to allow the grant to be retained.
Financial hardship
- [111]Mr Sandhu said in an email that the $5,000 had been ‘spent’, the family did not have ‘limitless cash’ and he did not have the money to repay the grant.[75] In his recent final submissions he has said that repaying the grant was ‘financially impossible’.
- [112]From Mr Sandhu’s statements about his financial situation it seems reasonable to conclude that he and his family have financial constraints. But it cannot be said that requiring repayment of the grant will be devastating for the family. For one thing, even with interest since 11 May 2022, the amount is small compared to the purchase price of the house and the mortgage repayments. And we know that despite the increase in the mortgage repayments, there is no suggestion that there are any arrears. Mr Sandhu is working and has earning capacity.
- [113]And although Mr Sandhu explains his own financial situation there is no evidence at all about the financial position of his wife who is the co-owner of the house. The grant was paid to them both, and they both will have an obligation to repay it.[76]
- [114]In any case it is very unlikely that if the grant is not repaid it will result in the family losing the house. In this respect I note that if the grant is not repaid it becomes a first charge on the house in priority to the mortgage.[77] It would continue to attract interest and it would be repaid on sale of the house. This means there is no need for the Commissioner to try to enforce it in any other way, for example by applying to the court for a sale of the house.
Other issues
- [115]There is nothing whatsoever to support the suggestion that the Commissioner’s decisions were influenced in any way by Mr Sandhu’s racial origins or colour. As for the possibility of this decision resulting in arbitrary demands for repayment in other cases, for one thing any such demands would not be arbitrary. And I do not think there would be many similar cases. This is shown by the number of reported cases about principal residency and about prior sales as a place of residence. Those issues seem to arise much more often than the issue about premises being lived in prior to purchase as in this review.
Conclusion
- [116]I conclude that the correct and preferable decision is that at the time of its purchase the house was not a ‘new home’ as required for the payment of the First Home Owners Grant and the Regional Home Building Boost Grant and so the decisions made by the Commissioner about that are confirmed. The correct and preferable decision is also that, as the Commissioner decided, the Regional Home Building Boost Grant was paid in error and should be repaid.
Footnotes
[1] Section 5(1)(a) of the FHOG Act.
[2] Section 5(3)(a) of the FHOG Act.
[3] Section 6(1) of the FHOG Act.
[4] Section 6(2) of the FHOG Act.
[5] Section 6(3) of the FHOG Act.
[6] Paragraph 1(a) of the direction.
[7] Paragraph 4 of the direction.
[8] Paragraph 10 of the direction.
[9] Section 47(1) of the FHOG Act as applied by section 25N(2), and this was also stated in paragraph 47 of the direction.
[10] [79] and [81]-[83].
[11] [19] when considering section 35 of the Interpretation of Legislation Act 1984 (VIC) which was in closely similar terms to the section 14A.
[12] Taylor v The Owners –Strata Plan No 11564 [2014] HCA 9 at [38].
[13] Vie Management Pty Ltd (Receivers and Managers Appointed) (In Liquidation) v Body Corporate for Gallery Vie CTS 37760 [2015] QCAT 164 at [77].
[14] Queensland Building and Construction Commission v B & L Constructions Qld Pty Ltd [2023] QCATA 71, at [18].
[15] [24].
[16] Section 139.
[17] This appears to be what was said at [67], [74] and [83].
[18] This might have been the approach in [79].
[19] Schedule 1.
[20] Hansard 11 September 2012, page 1819.
[21] Hansard 11 September 2012, page 1823.
[22] Hansard 13 September 2012, page 1934.
[23] Section 13 and 58 of the Human Rights Act 2019 (Qld) (HRA).
[24] Section 58(1)(b) of the HRA.
[25] Section 48 of the HRA.
[26] The objection in GAR645-21 was made on 19 July 2021 and in GAR472-22 was made on 30 May 2022.
[27] Under section 59 of the FHOG Act.
[28] Section 20 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
[29] Section 60(2)(b) of the FHOG Act.
[30] Section 60(2)(a) of the FHOG Act.
[31] Section 56(2) of the FHOG Act.
[32] Section 60(3) of the FHOG Act.
[33] Objection dated 19 July 2021, statement of reasons in GAR645-21, page 36.
[34] Email of 20 July 2021, statement of reasons in GAR645-21, page 28.
[35] Transcript of objection dated 30 May 2022, statement of reasons in GAR472-22, page 65.
[36] Email of 16 September 2022 statement of reasons in GAR472-22, page 17.
[37] Email of 27 July 2022 statement of reasons in GAR472-22, page 43.
[38] Email of 19 April 2022 statement of reasons in GAR472-22, page 93.
[39] Submission received on 2 March 2023 in GAR472-22.
[40] Final submission dated 14 September 2024.
[41] Email of 15 September 2024 to which the final submissions were attached.
[42] Statement of reasons in GAR645-21, page 64.
[43] The contract was dated 27 October 2020 and settlement was 18 December 2020.
[44] These reviews appear in the material submitted by the respondent in GAR645-21 – statement of reasons, page 46 and in GAR472-22 statement of reasons, page 46.
[45] The one dated 10 May 2021 uses a reverse date format but the index in the statement of reasons shows the correct date.
[46] This can be seen from the fact that the person who purportedly wrote the letters had the same first name and mobile telephone number as the person referred to in the material.
[47] Statement of reasons in GAR645-21, page 79.
[48] Statement of reasons in GAR472-22, pages 33 and 41.
[49] The email requesting permission was dated 8 August 2022 and the email in reply was 11 August 2022 statement of reasons in GAR472-22, pages 37 and 32 respectively.
[50] Section 60(2)(a) of the FHOG Act.
[51] In GAR645-21 such directions were given on 24 October 2022 and in GAR472-22 on 9 May 2023.
[52] Application received on 17 March 2023.
[53] Application received on 6 July 2023.
[54] Such a decision is a decision to which objection can be made: section 56(1)(b) of the FHOG Act, and therefore is a decision which can be reviewed by the tribunal.
[55] Submissions dated 17 February 2023.
[56] Direction in statement of reasons in GAR472-22, page 97.
[57] Direction, paragraph 36.
[58] Because the condition subsequent has not been satisfied.
[59] The Commissioner would however, have power to exempt the residence requirements or change the relevant periods: direction paragraphs 18 to 20.
[60] Section 47(1) of the FHOG Act as applied to a Regional Home Building Boost Grant by section 25N(2), and paragraph 47 of the direction.
[61] Some of these were considered by DCJ O'Connor K, President of the NSW Civil and Administrative Tribunal in McKenzie v Chief Commissioner of State Revenue [2005] NSWADT 214, [17].
[62] Section 47(2) of the FHOG Act.
[63] AGC (Investments) Ltd v Federal Commissioner of Taxation [1991] FCA 65.
[64] Hiley v Chief Commissioner of State Revenue [2009] NSWADT 133, Judicial Member Perrignon R.
[65] Email of 27 July 2022 statement of reasons in GAR472-22, page 43.
[66] Submissions received on 17 March 2023.
[67] Statement of reasons in GAR645-21, pages 107 and 54 respectively.
[68] Statement of reasons in GAR472-22, page 147.
[69] Statement of reasons in GAR472-22, page 76.
[70] Decision 14 September 2022 statement of reasons in GAR472-22, page 2.
[71] Memo dated 29 August 2022 statement of reasons in GAR472-22, page 21.
[72] Statement of reasons in GAR472-22, page 75.
[73] Internal note statement of reasons in GAR472-22, page 101.
[74] Email of 11 April 2022 statement of reasons in GAR472-22, page 94.
[75] Email of 27 July 2022 statement of reasons in GAR472-22, page 43.
[76] Section 48(2) of the FHOG Act.
[77] Section 49 of the FHOG Act.