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Pennisi & Pennisi v Commissioner of State Revenue[2025] QCAT 327

Pennisi & Pennisi v Commissioner of State Revenue[2025] QCAT 327

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Pennisi & Pennisi v Commissioner of State Revenue [2025] QCAT 327

PARTIES:

marcello pennisi

georgina pennisi

(applicant)

v

commissioner of state revenue

(respondent)

APPLICATION NO/S:

GAR236-24

MATTER TYPE:

General administrative review matters

DELIVERED ON:

28 August 2025

HEARD AT:

Brisbane

DECISION OF:

Member Lambie

ORDERS:

The Commissioner’s Objection Decision of 12 February 2024 is confirmed

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – whether the applicant was entitled to the HomeBuilder Grant

First Home Owner Grant and Other Home Owner Grants Act 2000 (Qld) 2000, s 25Q(3), s 60

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. [1]
    Mr and Mrs Pennisi (‘the Applicants’) seek review of the Commissioner of State Revenue’s (‘the Commissioner’) decision (‘the Objection Decision’) to refuse the payment of a HomeBuilder Grant under the First Home Owner Grant and Other Home Owner Grants Act 2000 (Qld) (‘the FHOG Act’) and the Australian Government HomeBuilder Grant – Queensland administrative Direction (‘the HomeBuilder direction’).
  2. [2]
    The Tribunal is asked to determine whether the construction contract into which Mr and Mrs Pennisi entered was eligible for payment of a grant under the FHOG Act and the HomeBuilder direction.

The Grant Scheme

  1. [3]
    During the COVID-19 pandemic, the Commonwealth, State and Territory Governments established the National Partnership on HomeBuilder agreement as a means to support the residential construction sector.
  2. [4]
    Pursuant to this agreement, Part 3B of the FHOG Act was enacted, which provides for the criteria for eligibility for a grant.  Specifically, section 25Q(3) provides that an applicant will be entitled to be paid the grant if:
    1. The applicant or, for a joint application, each of the applicants, complies with the eligibility criteria for the grant under the home builder direction; and
    2. The transaction for which the grant is sought is an eligible home builder transaction; and
    3. The relevant requirement in relation to the eligible home builder transaction has been met.
  3. [5]
    An ‘eligible home builder transaction’ is defined in the Schedule to the FHOG Act as “an eligible transaction within the meaning of the home builder direction”.  The “home builder direction” is defined as the “administrative direction called ‘Australian Government HomeBuilder Grant – Queensland’ made by the Minister and published on the department’s website”.  A copy of the Direction, dated 3 May 2023, has been produced to the Tribunal.
  4. [6]
    The HomeBuilder Direction lists three types of ‘eligible transactions’:
    1. The freehold purchase of a new home;
    2. Comprehensive home building contracts;  and
    3. Substantial renovation contracts.

These transactions are subject to further eligibility criteria, which include caps on the value of transactions.

  1. [7]
    This central issue in this proceeding is whether the Applicants’ contract qualifies as an eligible substantial renovation contract or an eligible comprehensive home building contract.

Background

  1. [8]
    In about 2018, the Applicants entered into a contract with Klinge Constructions & Developments (‘Klinge’) to partially demolish, raise the existing dwelling and conduct building works on an existing dwelling on their property at 7 Charlton Street, Hamilton (‘the Klinge contract’).   These works were completed up to what is described as “frame stage” until the contract was terminated.  A Form 21 Certificate of Final Inspection could not be issued at that time.
  2. [9]
    On 29 December 2020, the Applicants entered into a contract with Liona Constructions Pty Ltd (‘Liona’).  That contract was described as a Residential Renovation Contract – Level 2 (‘the Liona contract’) under which the defective frame installed by Klinge was to be demolished and the remaining work was to be completed in accordance with the original building plans.  Construction work commenced on 26 March 2021.
  3. [10]
    On 11 April 2021, the Applicants submitted their application for a HomeBuilder Grant.
  4. [11]
    On 20 September 2023, the Commissioner wrote to the Applicants, advising that their grant application had been rejected because the Liona contract was not an eligible transaction (‘the Original Decision’).  The Commissioner advised that the Liona contract was not a substantial renovation within the meaning of paragraph 1.c of the Homebuilder Direction and, more particularly:

… [Y]ou have confirmed that at the contract commencement date there was a pre-existing structure on the land that was not approved for use as a habitable dwelling.

As there was no pre-existing home on the land as at the contract commencement date, the transaction cannot be considered a substantial renovation under paragraph 1.c of the Administrative Direction.  Therefore paragraph 1.c of the Administrative Direction is not satisfied.

  1. [12]
    The Original Decision noted that Liona contract would also not have satisfied the requirements of an eligible comprehensive home building contract within the meaning of paragraph 1.b of the HomeBuilder Direction because Liona had not contracted to build a home from of the start of the building work to the point where the home was ready for occupation.
  2. [13]
    On 17 November 2023, the Applicants lodged an objection to the Original Decision.  On 12 February 2024, the Commissioner made the Objection Decision, confirming the Original Decision on the basis that the Liona contract was not an eligible transaction.  It is from the Objection Decision that the Applicants have applied to the Tribunal for review.
  3. [14]
    By section 59 of the FHOG Act and section 18(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’), the Tribunal has jurisdiction to review the Objection Decision.  It must hear and decide the matter by way of a fresh hearing, on the merits, the purpose of which is produce the correct and preferable decision[1].  The Tribunal may confirm or amend the decision, set aside the decision and substitute its own decision, or set aside the decision and return the matter to the Commissioner for reconsideration, with directions the Tribunal considers appropriate[2].
  4. [15]
    Particular to this application, section 60 of the FHOG Act requires the Tribunal to:
    1. Decide the review in accordance with the same law that applied in the making of the Original Decision;
    2. Hear and decide the review by way of reconsideration of the evidence that was before the Commissioner at the time the Decision was made, unless the Tribunal considers it necessary in the interests of justice to allow new evidence;  and
    3. Limit the grounds of review to the grounds of the objection, unless the Tribunal orders otherwise.

The Commissioner’s submissions

  1. [16]
    The Commissioner’s preliminary submission was lodged on 21 June 2024.  It argued the following:

An eligible substantial renovation contract

  1. [17]
    Under paragraph 1.c of the Homebuilder Direction, a transaction qualifies and is eligible for a grant if it is:

A substantial renovation contract made by the freehold owner of a home in Queensland if the contract commencement date is between 4 June 2020 and 31 March 2021 (both dates inclusive), and the construction commencement date is on or after the contract commencement date and within 18 months of the contract commencement date.

  1. [18]
    A “home” is defined by paragraph 17 of the HomeBuilder Direction as a building, fixed to land, that:
    1. may lawfully be used as a place of residence; and
    2. is a suitable building for use as a place of residence.
  2. [19]
    Paragraph 19.a of the HomeBuilder Direction defines a “substantial renovation contract” as:

A contract for the renovation of an existing dwelling which substantially alters the existing dwelling and improves the accessibility or safety or liveability of the property.

  1. [20]
    Paragraphs 19.b and 19.c also define substantial renovation contracts to include contracts for the demolition of an existing home and building of a new home on the land.  These paragraphs use different terminology to that in paragraph 19.a in the use of the word “home” rather than “dwelling”.  The Commissioner noted that the Applicants have argued that the different terminology indicates that paragraph 19.a does not include a connotation that the existing dwelling be liveable or habitable.
  2. [21]
    The Commissioner submitted that this argument should not be accepted because:
    1. “Dwelling” is not defined in the HomeBuilder Direction or the FHOG Act.  In the absence of any statutory definition, it is presumed that its legal meaning will correspond with its grammatical meaning; and
    2. To include non-habitable structures would misconstrue the purpose of paragraph 19 of the HomeBuilder Direction, which is to establish criteria for transactions that qualify under paragraph 1.c.
  3. [22]
    In relation to the use of the word “dwelling” the Commissioner submitted that dictionary definitions may assist, albeit that statutory construction ultimately requires consideration of the text itself, read in its context and in light of the purpose of the statute.  To this end, it was submitted that the definition of “dwelling” in the Macquarie Dictionary was “a place of residence or abode; a house; a room or suite of rooms designed to be used as a separate domicile.”  This definition, it was submitted, is consistent with operative purpose and policy intent of the FHOG Act and the HomeBuilder Direction, which apply in respect of homes, as opposed to other types of buildings or structures that do not have the character of places of residence.
  4. [23]
    The Commissioner further submitted that the definition of “home” in paragraph 17 of the HomeBuilder Direction is identical to that in section 6(1) of the FHOG Act and that the meaning of a building that “may lawfully be used as a place of residence” had been previously considered by the Tribunal:
    1. In Bielefeld v Commissioner of State Revenue[3], it was not until a Final Inspection Certificate was issued that a building became a home and lawfully able to be used as a place of residence; and
    2. In Brady v Commissioner of State Revenue[4], a certificate of final inspection was accepted as “conclusive evidence that the building was a place of residence” for the purposes of the FHOG Act.
  5. [24]
    As to the purpose of paragraph 19 of the HomeBuilder Direction, the Commissioner submitted that paragraph 1.c of the direction contains multiple mandatory limbs that a transaction must satisfy to be an eligible transaction, namely:
    1. A ‘substantial renovation contract’ (as defined at paragraph 19);
    2. Made by the freehold owner;
    3. Of a home (as defined at paragraph 17);
    4. In Queensland;
    5. With a commencement date between 4 June 2020 and 31 March 2021; and
    6. Within the construction commencement date window.
  6. [25]
    It was submitted that the Applicants’ position only addressed whether the contract met the definition of a ‘substantial renovation contract’ without addressing the other eligibility criteria and, in particular, whether it was a ‘home’ within the meaning of paragraph 17 of the direction.
  7. [26]
    The Commissioner submitted that the evidence of the Applicants was that, at the time they entered the Liona contract, the building could not lawfully or suitably be used as a place of residence, a Final Inspection Certificate not having been issued.  Accordingly, the Liona contract was not an eligible transaction, and the Applicants were not eligible for the grant.
  8. [27]
    It was submitted that the Liona contract would not fall within the alternative definitions of a substantial renovation contract in paragraphs 19.b and 19.c of the direction because they expressly refer to the demolition of existing and pre-existing homes and to the construction of “a new home”, the latter element (as defined by paragraph 18 of the direction) not being part of the scope of the Liona contract.

The Applicants’ submissions

  1. [28]
    The Applicant’s submissions of 12 July 2024 provide a list of 10 errors in the Objection decision.  These are (applying the Applicants’ numbering):
    1. 7 Charlton Street was not required to be a ‘habitable dwelling” but only an existing dwelling;
    2. 7 Charlton Street was approved by the Brisbane City Council as a “multiple dwelling”;
    3. There was no requirement that 7 Charlton Street be “habitable” even though it was;
    4. There was no requirement that the existing dwelling, property or home be “liveable” although it was;
    5. The Commissioner incorrectly disqualified the Applicants’ application on the basis that some demolition had commenced on the existing home;
    6. The Commissioner has no evidence to support his position that a ‘home’ did not exist at the time of entering into a renovation contract with Liona;
    7. The word “dwelling” was incorrectly and too narrowly defined as “home”;
    8. The Commissioner ignored Direction 19.a that contemplates that existing dwelling (home) had pre-existing deficiencies of accessibility, safety, or liveability, all capable of substantial improvement and therefore justifying the renovation;
    9. The Commissioner has failed to reasonably exercise a discretion contained within the last two sentences of paragraph 19 whereby the renovation of a standalone structure not connected to the home can still qualify as an eligible transaction;
    10. The Commissioner incorrectly applied the freehold ownership criterion to the ‘home’ rather than the ‘property’.

There were two Annexures to the submissions.  Annexure A is a tabulated list titled “Practical reasons why 7 Charlton Street was reasonably a “dwelling” or “home” on 29 December 2020.  Annexure B is index of documents submitted to the Commissioner in support of the internal review application.

  1. [29]
    Some of the claimed errors and/or grounds for review are restatements or refinements of each other.
  2. [30]
    To summarise their central argument, the Applicants claim that the Commissioner has wrongly conflated the words “dwelling” and “home” in the HomeBuilder Direction.  They submit that the words were used deliberately and have different gradations of meaning.
  3. [31]
    The Applicants therefore submit that the Commissioner’s position that the structure the subject of a renovation contract must be habitable at the contract commencement date is a gloss on the word “dwelling” that is not required or supported by the Direction.  The Applicants submitted that the following decisions are relevant:
    1. In Lewis & Anor v Commissioner for State Revenue [2022] QCATA 129, Member Oliver held that, in relation to the Commissioner’s contention that, by reference to the requirements of other paragraphs of the Direction that builders or contractors be licensed or registered, the word “builder” in clause 14 should be read to mean “licensed under the QBCC Act”,

[S]hould the text be given its plain intended meaning rather than attempting to impute words that deviate from the plain intended meaning of the word when having regard to the overall context ...?

…

[O]n its face, there is no ambiguity.  It means what it says in that a builder undertakes to build a home under the contract.  Had it been intended to impose a condition that the builder referred to in clause 14 was required to hold a QBCC licence, that could have been included in clause 14, by including words such as ‘a licenced builder’ or by way of a definition section defining “builder” in the Direction.  However, that is not the case.

  1. In Commissioner of State Revenue v Taske [2023] QCATA 121, the Appeal Tribunal held that it was an error for the Tribunal to construe a definition of a comprehensive home building contract so as to widen a requirement for a builder to undertake the construction of a home to include “responsibility for construction being assumed or falling upon” the builder.
  1. [32]
    The Applicants further submitted that the building had, in any event, been a home within the meaning of the definition prior to the commencement of the works.  They submitted that it continued to have this character, as evidenced by the Brisbane City Council’s town planning and development approval records, real estate agency rental records and photographs from 2014. 
  2. [33]
    Finally, the Applicants submitted that the Commissioner’s interpretation of the Act and the Direction was inconsistent with the language and the purpose of the grant scheme, which was to promote residential construction activity and to maintain employment, directly and indirectly, in the construction sector.
  3. [34]
    Although the submissions fall broadly into these categories, other details of the Applicants’ submissions discussed further below.

The Commissioner’s response

  1. [35]
    The Commissioner’s response was lodged on 26 August 2024.  It reiterated that the sole issue for determination is whether the Liona contract was in respect of a ‘home’ because a substantial renovation contract, to be eligible for a grant, must meet the criteria in paragraph 1.c of the Homebuilder direction.
  2. [36]
    In response to the arguments advanced by the Applicants, the Commissioner submitted that they can be reduced to three categories of issues.

Category 1:  The Direction only requires an ‘existing dwelling’

  1. [37]
    The Commissioner submitted that the Applicant’s interpretation of ‘dwelling’ was misplaced, not only by reference to the ordinary meaning of the word, but also because paragraph 19.a is merely a definitional provision going to the meaning of a ‘substantial renovation contract.’ Further, even if the Applicants were correct in their argument, it would not automatically make the Liona contract an ‘eligible transaction.’
  2. [38]
    The Commissioner noted that the existence of a Form 21 Final Inspection Certificate was not an essential criterion under the FHOG Act or the Direction, but was powerful evidence that that a building was complete and, therefore, a home.  Accordingly, the absence of that document supported a conclusion that the building (which was admitted by the Applicants to be in mid-construction) was not yet a suitable building for use as a place of residence, or could lawfully be used as a place of residence.

Category 2:  Documents reflect that the building was an approved home

  1. [39]
    The Commissioner noted that the Applicants engaged Klinge to undertake the renovation works in 2018, which predated the availability of the grant scheme.   On the termination of that contract, the property was in a state of disrepair and no Form 21 could be issued.  The Liona Contract having been entered into on 29 December 2020, the question for determination was whether the building was an eligible ‘home’ on that date.
  2. [40]
    The Commissioner submitted that none of the documents submitted by the Applicants (see paragraph 32 above) go to the state of the property at the time the Liona contract was entered into.  It was not disputed that the building had been a ‘home’ until about 2018, and would be again once the Liona works were complete and a Form 2 had been issued.  However, from the commencement of the Klinge contract, the character of the building had changed to that of a construction site.  The Commissioner submitted that the Applicants had since sought to resile from their previous use of that and similar terms but that, had there been evidence that the building was a ‘home’ during the relevant period, it would have been disclosed in the course of these proceedings.

Category 3:  The proper interpretation of the HomeBuilder Direction

  1. [41]
    The Commissioner noted the Applicants’ argument that the Commissioner’ approach was inconsistent with the language of the scheme and the requirements of section 14A of the Acts Interpretation Act 1954 (Qld) and did not further the purpose of the scheme.  The Commissioner accepted that the purpose of the scheme was to provide financial assistance and to increase residential construction activity but, it was submitted that the scheme was never intended to operate without limits.  He drew attention to the stated objective of the HomeBuilder agreement which was to provide assistance to “eligible owner-occupiers” and therefore subject to specific limitations and restrictions.  Alexander v Commissioner of State Revenue [2023] QCAT 409 at [19] held that neither the Commissioner nor the Tribunal has a discretion regarding the assessment of applications for grants under the FHOG Act and, accordingly, in application should only be successful if there is full compliance with the legislation.
  2. [42]
    The Commission further submitted that expanding the HomeBuilder direction in the manner argued by the Applicants “potentially risks enabling applicants to artificially pause and restart works ‘mid-construction’ to qualify for grants they were not otherwise entitled to.”

The Applicants’ reply

  1. [43]
    The Applicants’ submissions in reply to the Commissioner’s response were lodged on 7 October 2024.  The Applicants repeated and relied upon their submissions of 12 July 2024.  They requested that the Tribunal exercise its discretion to allow the submission of certain additional arguments.  Because those arguments are, for the most part, reformulations or expansions of their other arguments, it is not necessary for the Tribunal to exercise any formal discretion for their admission into the proceedings.
  2. [44]
    The Applicants’ submissions in reply were:

The Commissioner failed to reply to each of the ‘errors’ submitted by the Applicants

  1. [45]
    The Applicants submitted that the Commissioner had not succinctly and clearly replied to each of the 10 submissions made by the Applicant.  They indicated, as an example, that the Commissioner had failed to respond to their submission (submission (j) in paragraph 28 above) that the Commissioner incorrectly applied the freehold ownership criterion to the ‘home’ rather than the ‘property’.  It was submitted that the Tribunal should infer that the Commissioner could not rebut this proposition, and their application should therefore succeed.

The Bielefeld and O'Neill QCAT cases are not applicable because they are in connection with a ‘new home’ and not a ‘renovated home’

  1. [46]
    The Applicants submitted that the Commissioner had incorrectly applied the Bielefeld and O'Neill decisions because they were:
    1. About a ‘new home’ application, rather than a renovation;
    2. Involved the relocation of a house to different block, whereas in the present case the house has remained on the same block; and
    3. Are not reflective of the Final Certificate requirement, because the Certificates were “not mandated” by the legislation and were “not an essential criterion”.

The Commissioner’s reliance on the First Applicant’s subjective comments is wrong, unfair and must be excluded

  1. [47]
    The Applicants submitted that the First Applicant’s opinion that the property was a “construction site” and “not liveable” were not relevant to the question of whether the building was a ‘home’ for the purposes of the Direction.  They submitted that the relevant test was an objective one:  Parker & Anor v Queensland Building Services Authority [2000] QDC 221 and Parker v QBSA [2000] QCA 422.

The Commissioner’s only evidence confirms a ‘home’ did exist in 2019

  1. [48]
    The Applicants submitted that a photograph of the property from November 2019 should only be considered to the extent that it proves a home did exist at time, having been lifted, remaining affixed to the land and retaining power, water, rates supply and Brisbane City Council approval.  They submit that the Commissioner’s approach would result in absurdity of the grant application could be refused simply because of the premature removal of some windows and panels.  In support of this argument, they cited Conomos v Commissioner of State Revenue [2024] QCAT 372 at [55].

The Commissioner should exercise his paragraph 61 discretion to amend the terms of the Direction to ensure paragraphs 1.c, 24 and 28 are consistent

  1. [49]
    The Applicants point to paragraph 61 of the Direction which permits the Commissioner to amend or vary the terms of the Direction to change any requirement or process necessary to ensure the proper administration and integrity of the grant scheme, provided the change is not inconsistent with the National Partnership Agreement, or to ensure consistency with the National Partnership Agreement should any changes be made to that agreement. They submit that the discretion should be exercised to make paragraph 1.c consistent with paragraphs 24 and 24 of the Direction as to the freehold ownership of ‘property’ rather than ‘home’ and to ensure that they qualify for the grant.

The Commissioner cannot add additional requirements to the Direction

  1. [50]
    The Applicants submitted that the Commissioner’s requirement for a Form 21 in order for them to qualify for the grant was the addition of a new prescriptive requirement to the Direction, any beyond power, citing Ashton v Commissioner of State Revenue [2024] QCAT 394 and Commissioner of State Revenue v Taske (supra).

The Commissioner is wrong to assert that occupation is not possible without a Final Certificate (Form 21)

  1. [51]
    The Applicants submitted that the Commissioner has incorrectly and unfairly relied on an inferred requirement that they could not occupy the property at any stage without a Form 21.  They claimed that the correct certificate is a ‘building certificate of occupancy’ (Form 11) which, in any event, is not required for a single detached house.
  2. [52]
    The Direction, properly construed, applies to the freehold owners of a property, not a ‘home’.
  3. [53]
    The Applicants submitted that the Commissioner incorrectly focused on the interpretation of a ‘home’ without referring to the preceding words “freehold owner of …” in paragraph 1.c, to which further reference is made in paragraphs 24 and 28 of the Direction. 
  4. [54]
    They submit that this is important because, while paragraph 1.c refers to “a substantial renovation contract made by the freeholder owner of a home …”, paragraph 28 provides that, for joint applications (as was the case for the Applicants):

If an application relates to a substantial renovation contract, the joint applicants must be the only registered freehold owners of the property at the contract commencement date. [Emphasis as supplied by the Applicants].

  1. [55]
    Therefore, it was submitted, the requirement to be the ‘freehold owner of a home’ was not applicable to a joint application.  Further, or in the alternative, paragraph 24 of the Direction similarly refers to a ‘property’ rather than a ‘home’.  It was submitted that, when the Direction variously refers to ‘dwelling’ and ‘property’ in addition to ‘home’ it was “wrong, unfair and incorrect” for the Commissioner to take the word ‘home’ out of its broader context and to subject it to a narrow reading.

Consideration

Eligible transactions under The HomeBuilder Grant Scheme

  1. [56]
    To determine this application, it is necessary to understand the operative elements of the HomeBuilder Grant Scheme, which is set out at paragraphs 3 to 6 above.  The scheme establishes an assessment regime which follows a certain progression, set out in the legislation (section 25Q(3) of the FHOG Act):
    1. Each of the applicants complies with the eligibility criteria for the grant under the home builder direction; and
    2. The transaction for which the grant is sought is an eligible home builder transaction; and
    3. The relevant requirement is relation to the eligible home builder transaction has been met.

Do the applicants comply with the eligibility criteria for the grant under the home builder direction?

  1. [57]
    The eligibility criteria for applicants are set out in paragraphs 21 to 35 of the Direction. 
  2. [58]
    The material submitted by the Applicants with their grant application, copies of which were provided for the Tribunal application, indicate that the Applicants met criteria 1b to 5.  There was no evidence to suggest that Criterion 6 would not have been met.
  3. [59]
    Accordingly, the Applicants complied with the eligibility criteria for the purposes of section 25Q(3)(a) of the FHOG Act.

Was the transaction for which the grant was sought an eligible home builder transaction?

  1. [60]
    As noted in paragraph 5 above, the Schedule to the FHOG Act defines an eligible home builder transaction by reference to the Direction.
  2. [61]
    Relevant to the Applicants’ circumstances, paragraph 1.c of the Direction determines whether the transaction is an eligible transaction.  The elements of the transaction material to this application are written in bold:

A substantial renovation contract made by the freehold owner of a home in Queensland …

  1. [62]
    A substantial renovation contract is defined in paragraph 19 of the Direction.  For this application, the relevant definition is in subparagraph 19.a:

A contract for the renovation of an existing dwelling which substantially alters the existing dwelling and improves the accessibility or safety and liveability of the property …

  1. [63]
    This is the point at which the contested use of the word ‘dwelling’ becomes relevant.  I consider that, rather than creating ambiguity, the use of the term “dwelling” was chosen to comprehend the fact that a building might or might not continue to be a ‘home’ during the renovation, depending on the nature and extent of the works.  There was no need to find an alternative expression in subparagraphs 19.b and 19.c because the transactions to which they refer do not contemplate the existence of a ‘home’ until the construction is complete.
  2. [64]
    Similarly, the use of the word ‘property’, properly construed, does not admit of ambiguity. It refers to the land upon which a structure is affixed; more particularly, it is relates to the requirement that applicants hold the freehold title to it.  The title is in the land, rather than the structure upon it.  The reference to ‘property’ also comprehends that an eligible substantial renovation contract may extend beyond the dwelling itself, as illustrated by the examples given in paragraph 19 of the Direction.
  3. [65]
    However, the proper construction of these words is, to a certain extent, beside the point in this application.  Whatever the meaning of a ‘substantial renovation contract’, in order to be an eligible transaction, it must be made by the freehold owner of a home.   Contrary to the Applicants’ submission, the word ’home’ was not removed from its context and applied to narrow the meanings of ‘dwelling’ and ‘property:  rather, ownership of a ‘home’ is the necessary precondition for a substantial renovation contract to be an eligible transaction. 
  4. [66]
    The relevant question, therefore, is whether the house was a ‘home’ as defined in paragraph 17 at the time the Liona contract was entered into. 
  5. [67]
    As the Commissioner has submitted, the definition of ‘home’ in the Direction replicates the definition in section 6 of the FHOG Act, and there is substantial authority for the interpretation he propounds.  He submits that the following principles can be applied from Bielefeld and O'Neill[5]:
    1. A grant will only be payable in respect of a ‘home’;
    2. A ‘home’ is a building which may lawfully be used as a place of residence, and is a suitable building for a place of residence;
    3. Where a building is undergoing significant works, either through substantial renovations or through replacement and redelivery, it will only be a ‘home’ when the building works are complete; and
    4. Evidence is required to demonstrate that the building is complete.  Although not mandated by the relevant legislation, a certificate of final inspection is powerful evidence that the building is complete and thus a ‘home’.
  6. [68]
    The Applicants submitted that Bielefeld and O'Neill should be confined to their facts, because they were assessed as ‘new homes’ and involved relocation of buildings to new sites.  However, the material facts in those decisions related to whether the buildings to be moved were ‘homes’ at the times relevant to the assessment of the grant applications.  As the Commissioner rightly noted, a Form 21 is not mandated but it is extremely useful evidence that the house is fit for occupation.
  7. [69]
    In the absence of a Form 21, the Tribunal has considered whether any other evidence admits of a conclusion that the building was a ‘home’ at the commencement of the Liona contract. 
  8. [70]
    Because the purpose of this review is to produce the correct and preferable decision by way of a fresh hearing on the merits[6], the Applicants do not need to prove any error by the Commission in the Objection Decision[7].  However, they do have an evidential onus to provide appropriate material to support the decision they seek:

Generally, there is no onus.  However, practically, a party will want to adduce evidence that supports the party’s case, since the Tribunal can only make its decision on the material before it.  In the absence of appropriate evidence, the Tribunal will not be free to make the decision sought by the party.  This has sometimes been described as an evidentiary burden, but there is no formal onus of proof.  The question is whether the Tribunal is satisfied that the provision under consideration can be invoked on the information or material before it.[8]

  1. [71]
    The Applicants submitted material based on the Brisbane City Council’s permitted uses of the property and rates assessments.  I do not consider that material relevant to the definitions the subject of the application.  The condition or state of habitation of a structure is not an element of its assessment for local government rates, and permitted uses for town planning purposes arise in a different context altogether.  That is to say, the fact that a property is zoned for residential use, or has been granted development approval for a dwelling, does not provide any assistance in the interpretation of the term “home” or “dwelling” in the FHOG Act or the HomeBuilder Direction.
  2. [72]
    The Applicants also submitted water and electricity bills for the property.  These have some limited value in respect of the issue before the Tribunal.  The electricity bill for the period 15 September 2020 to 14 December 2020 (i.e., up until 15 days prior to the commencement of the Liona contract) shows 0 kWh of general electricity usage.  It also contains a graph showing that there was minimal electricity usage from April 2020.  A water bill dated 6 July 2020 shows 0 kL of water usage for the period 14 January 2020 to 16 April 2020.  A bill for the period 7 October to 4 January 2021 shows 7 kL of usage, which is a very low amount for a Brisbane summer.  The bills are strongly suggestive of the house being unoccupied for some time prior to the commencement of the Liona contract.
  3. [73]
    Photographs included with a development permit application prepared by DTS Group Qld Pty Ltd, dated June 2021 provides three views of the subject site in November 2019.  They show a house that is clearly undergoing substantial construction works, with all doors and windows apparently removed, open framework, and secured behind temporary mesh fencing of the type used for construction sites.
  4. [74]
    All of this material conforms closely to the description attributed to the first applicant that the “property was a construction site and not liveable whatsoever.”
  5. [75]
    The Applicants submitted that this description was irrelevant, and that the Tribunal should apply an objective test, citing Parker & Anor v Queensland Building Services Authority.  The passage cited includes the following:

It becomes a question of fact in each case.  The approach of the Tribunal … allows one to approach the question objectively and to determine whether the premises are capable of use as a residence or whether the premises are capable of use in whole or in part as commercial or industrial premises.[9]

  1. [76]
    I accept that an objective test is appropriate, and that the first applicant’s subjective assessment is not determinative of the issue although, in the absence of a conclusive document such as a Form 21, it forms part of the evidentiary matrix to be considered.  I cannot use the test proposed in Parker in the way suggested by the Applicants:  that the premises are capable of use as a residence or that the building has the “character” of a home.  The test in Parker referred to a definition of a ‘home’ under repealed legislation which defined a ‘home’ as “any residential premises except premises constituting, or forming part of, commercial or industrial premises.”  This matter requires the application of the definition in the FHOG Act and the Direction to the evidence presented to the Tribunal by the parties.
  2. [77]
    In determining whether the building at 7 Charlton Street, Ascot, could lawfully be used as a place or residence, and was a suitable building for use as place of residence as at 29 December 2020, I have taken into account:
    1. The uncontested evidence that the Applicants entered into the Liona contract in order to recommence and complete the terminated Klinge contract, in respect of which significant works to the building had been undertaken and not completed;
    2. The photographs included with the development permit application that show that significant uncompleted construction work had been undertaken, with the building site secured behind temporary mesh fencing, apparently without doors and windows and otherwise not weatherproofed;
    3. The utilities bills show no, or no significant, use of electricity or water in the quarter prior to 29 December 2020;
    4. The first applicant’s statement to the Commissioner that the property was a construction site and not liveable whatsoever, as a statement of his subjective assessment that the property was not usable as a place of residence, and as a statement of fact that the house was not being used as a place of residence; 
    5. The absence of a Form 21 in respect of the Klinge works, or issued at any time up to 29 December 2020; and
    6. The absence of any other material from the Applicants that would evidence that the building could lawfully be used as a place of residence and was suitable as a place of residence as at 29 December 2020, despite the opportunity to present any such evidence and the value to their application of any such evidence.
  3. [78]
    Taking these matters into account, and giving particular weight to the absence of any material evidence suggestive of a contrary finding, I am satisfied that the building at 7 Charlton Street, Ascot, was not a ‘home’ within the meaning of paragraph 17 of the HomeBuilder Direction at the time the Liona contract commenced and that, therefore, the Liona contract was not an eligible transaction for the payment of a HomeBuilder Grant.

Discretion to amend or vary

  1. [79]
    The Applicants submitted that, should the Tribunal accept the Commissioner’s characterisation of the transaction, it should exercise the discretion in paragraph 63 of the Direction to “make paragraph 1.c consistent with paragraphs 24 and 24 of the Direction” as to the freehold ownership of ‘property’ rather than ‘home’ and to ensure that they qualify for the grant.
  2. [80]
    I have considered the decision of the Tribunal in Phillips v Commissioner of State Revenue [2023] QCAT 426.  In that case, the payment of the grant was refused on the basis that the homeowner held the title of the property in company shares and not by way of strata title.  The discretion was exercised in favour of the homeowner because the definition of the relevant interest in the Administrative Direction did not align with that in the Act and the omission of title by shares was unfair and discriminatory. Having found above that there is no inconsistency as to the use of ‘home’, ‘dwelling’ and ‘property’, I do not consider that any exercise of the discretion by the Tribunal is necessary or appropriate, nor do I propose to return the decision to the Commissioner with a direction to exercise the discretion. 
  3. [81]
    Further, the Applicants’ proposal for the exercise of the discretion was vague as to how that might be done, given that paragraph 63 provides for amendment or variation of the terms of the direction to achieve the outcome they seek.  In particular, I would be concerned that to broaden the scope of eligible transactions may diminish the scope of the disqualifying arrangements in paragraphs 8 and 9 of the direction.  The purpose of these provisions is to exclude contracts forming part of a scheme to circumvent eligibility requirements, including a contract which replaces a contract made before 4 June 2020 which is for the same or substantially similar renovation of the home.  
  4. [82]
    Having found the building was not a ‘home’ at the time the Liona contract was made, the Tribunal turns to the individual submissions made by the Applicants.
  5. [83]
    The submission that 7 Charlton Street was not required to be a ‘habitable dwelling” but only an existing dwelling is not accepted, because it was required to be a ‘home’ and did not meet that description for the reasons given above.
  6. [84]
    The submission that 7 Charlton Street was approved by the Brisbane City Council as a “multiple dwelling” is not accepted and is irrelevant because the building was required to meet the description of a ‘home’, and for the reasons given in paragraph 71 above.
  7. [85]
    The submissions that 7 Charlton Street was not required to be ‘habitable’ or ‘liveable’ are not accepted because it was required to meet the description of a ‘home’ for the reasons given above.
  8. [86]
    The submission that the Commissioner incorrectly disqualified the Applicants’ application on the basis that some demolition had commenced on the existing home is not accepted because, at the date of making the Liona contract, the building was not a ‘home’ for the reasons given above.
  9. [87]
    The submission that the Commissioner has no evidence to support his position that a ‘home’ did not exist at the time of entering into a renovation contract with Liona is not accepted because of my findings at paragraphs 77 and 78 above.
  10. [88]
    The submission that the word “dwelling” was incorrectly and too narrowly defined as “home” is not accepted in view of my observations in paragraph 63 and findings in paragraphs 65 and 78 above.
  11. [89]
    The submission that the Commissioner ignored Direction 19.a that contemplates that existing dwelling (home) had pre-existing deficiencies of accessibility, safety, or liveability, all capable of substantial improvement and therefore justifying the renovation is not accepted because the Commissioner was required to consider whether the transaction was an eligible renovation contract within the meaning of paragraph 1.c of the Direction.
  12. [90]
    The submission that the Commissioner has failed to reasonably exercise a discretion contained within the last two sentences of paragraph 19 whereby the renovation of a standalone structure not connected to the home can still qualify as an eligible transaction is not accepted for the reason given in paragraph 89 above.
  13. [91]
    The submission that the Commissioner incorrectly applied the freehold ownership criterion to the ‘home’ rather than the ‘property’ is not accepted in view of my observations at paragraphs 64 and 65 above.
  14. [92]
    The submission that, because the Commissioner failed to rebut each of the ‘errors’ submitted by the Applicants, the Applicants should succeed in the application is not accepted because it ignores the role of the Tribunal to test and determine the parties’ submissions.
  15. [93]
    The submission that the Bielefeld and O'Neill QCAT cases are not applicable because they are in connection with a ‘new home’ and not a ‘renovated home’ is not accepted for the reasons given in paragraph 68 above.
  16. [94]
    The submission that the Commissioner’s reliance on the First Applicant’s subjective comments is wrong, unfair and must be excluded has been dealt with in paragraphs 76 to 78 above.
  17. [95]
    The submission that the Commissioner’s only evidence confirms a ‘home’ did exist in 2019 has been dealt with in paragraphs 73 and 77 above.
  18. [96]
    The submissions objecting to the Commissioner’s ‘requirement’ of a Form 21 have been dealt with in paragraphs 68, 69, 76 and 77 above.
  19. [97]
    The submission that the Direction, properly construed, applies to the freehold owners of a property, not a ‘home’ is the same submission as that dealt with in paragraph 91 above.
  20. [98]
    In the result, the Commissioner’s Objection Decision of 12 February 2024 is confirmed.

Footnotes

[1]  QCAT Act, s. 20

[2]  QCAT Act, s. 24

[3]  [2015] QCAT 222, [15] - [22]; see also Commissioner of State Revenue v Bielefeld [2016] QCATA 46, [12] - [14].

[4]  [2020] QCAT 521, [14].

[5]O'Neill v Commissioner of State Revenue [2014] QCAT 482, [38] to [41]; O'Neill v Commissioner of State Revenue [2015] QCATA 108, [30]

[6]  QCAT Act, s. 20

[7]Harley v Department of Justice and Attorney-General [2012] QCAT 620, [8]

[8]Walker v Queensland Building and Construction Commission [2014] QCAT 228, [33]

[9]  [2000] QDC 221, [19].

Close

Editorial Notes

  • Published Case Name:

    Pennisi & Pennisi v Commissioner of State Revenue

  • Shortened Case Name:

    Pennisi & Pennisi v Commissioner of State Revenue

  • MNC:

    [2025] QCAT 327

  • Court:

    QCAT

  • Judge(s):

    Member Lambie

  • Date:

    28 Aug 2025

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
Alexander v Commissioner of State Revenue [2023] QCAT 409
1 citation
Jump To
Cite 1 - [2023] QCAT 409
Ashton v Commissioner of State Revenue [2024] QCAT 394
1 citation
Jump To
Cite 1 - [2024] QCAT 394
Bielefeld v The Commissioner of State Revenue [2015] QCAT 222
1 citation
Jump To
Cite 1 - [2015] QCAT 222
Brady v Commissioner of State Revenue [2020] QCAT 521
1 citation
Jump To
Cite 1 - [2020] QCAT 521
Commissioner of State Revenue v Bielefeld [2016] QCATA 46
1 citation
Jump To
Cite 1 - [2016] QCATA 46
Commissioner of State Revenue v Taske [2023] QCATA 121
1 citation
Jump To
Cite 1 - [2023] QCATA 121
Conomos v Commissioner of State Revenue [2024] QCAT 372
1 citation
Jump To
Cite 1 - [2024] QCAT 372
Harley v Department of Justice and Attorney-General [2012] QCAT 620
1 citation
Jump To
Cite 1 - [2012] QCAT 620
Lewis v Commissioner for State Revenue [2022] QCATA 129
1 citation
Jump To
Cite 1 - [2022] QCATA 129
O'Neill v Commissioner of State Revenue [2014] QCAT 482
1 citation
Jump To
Cite 1 - [2014] QCAT 482
O'Neill v The Commissioner of State Revenue [2015] QCATA 108
1 citation
Jump To
Cite 1 - [2015] QCATA 108
Parker v QBSA[2001] 2 Qd R 644; [2000] QCA 422
1 citation
Jump To
Cite 1 - [2000] QCA 422
Parker v Queensland Building Services Authority [2000] QDC 221
2 citations
Jump To
Cite 1 - [2000] QDC 221
Cite 2 - [2000] QDC 221
Phillips v Commissioner of State Revenue [2023] QCAT 426
1 citation
Jump To
Cite 1 - [2023] QCAT 426
Walker v Queensland Building and Construction Commission [2014] QCAT 228
1 citation
Jump To
Cite 1 - [2014] QCAT 228

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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