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  4. O'Neill v The Commissioner of State Revenue - [2015] QCATA 108

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O'Neill v The Commissioner of State Revenue[2015] QCATA 108

O'Neill v The Commissioner of State Revenue[2015] QCATA 108

CITATION:

O'Neill v The Commissioner of State Revenue [2015] QCATA 108

PARTIES:

Penelope O'Neill

(Applicant/Appellant)

v

The Commissioner of State Revenue

(Respondent)

APPLICATION NUMBER:

APL494-14

MATTER TYPE:

Appeals

HEARING DATE:

26 May 2015

HEARD AT:

Brisbane

DECISION OF:

Member Howard (Presiding)

Member Paratz

DELIVERED ON:

16 July 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The application for leave to appeal is refused.

CATCHWORDS:

LEAVE TO APPEAL – whether leave to appeal should be granted – where applications for building boost grant – where tribunal confirmed decisions of decision-maker on review – where leave for new evidence not sought by applicant in review proceeding – where applicant seeks to rely (if leave to appeal is granted) on new evidence – where new evidence, if allowed, would not result in a different outcome

Building Boost Grant Act 2011 (Qld), s 6, s 7, s 8, s 12, s 13, s 15, s 17, s 97

Building Regulation 2006 (Qld), s 24

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142

Council of the City of Wollongong v Cowan (1955) 93 CLR 435

O'Neill v Commissioner of State Revenue [2014] QCAT 482

APPEARANCES:

 

APPLICANT:

Ms Penelope O'Neill

RESPONDENT:

Mr Courtney Keim, In House Lawyer and Mr R Masnata, Senior Review Officer

REASONS FOR DECISION

  1. [1]
    Ms O'Neill applied for the building boost grant under the Building Boost Grant Act 2011 (Qld) (BBG Act) in respect of three properties located adjacent to one another. The Commissioner of State Revenue disallowed the applications and disallowed her objection to those decisions. Ms O'Neill applied for the Tribunal to review the decisions. The Tribunal confirmed the decisions of the Commissioner.
  2. [2]
    Ms O'Neill has filed an application for leave to appeal and appeal in respect of two of the decisions, relating to Lot 1 and Lot 3 (as they are described in the Tribunal’s reasons for decision on the review).[1]

Background

  1. [3]
    Ms O'Neill purchased a house and land in Manly West. It was registered in her name on 30 March 2012. She applied on 19 April 2012 to subdivide it into three lots. She was notified of development approval for the subdivision by the local authority on 2 August 2012. On 14 March 2013, the plan of subdivision was registered and the new titles issued. Meanwhile on 27 April 2012, she had entered into contracts with Mackay and Sons, House Removers, for the supply delivery and restumping of an identified removal house, on each of Lots 1 and 3. The Tribunal found that she did this in respect of both Lots 1 and 3 as an owner builder.
  2. [4]
    An applicant for a BB grant is entitled to be paid the grant only if the eligible transaction has been completed.[2] There are three types of eligible transaction, including an eligible owner-builder arrangement.[3] An eligible owner-builder arrangement is defined as follows:[4]

17 What is an eligible owner-builder arrangement

An owner-builder arrangement is an eligible owner-builder arrangement if—

  1. (a)
    it is for the building of a new home on land in the State; and
  1. (b)
    the transaction commencement day is on or after 1 August 2011 and before 1 May 2012; and
  1. (c)
    the home is ready for occupation as a place of residence within the prescribed building period or the longer period allowed by the commissioner; and
  1. (d)
    the total of the following is less than $600000—
  1. (i)
    the consideration for the transaction;
  1. (ii)
    the unencumbered value of the relevant interest in the residential land on the transaction commencement day.[5]
  1. [5]
    A new home is a home that has not been previously occupied or transferred as a place of residence or is a substantially renovated home.[6] A building is a home if, among other things, it is designed or approved for human habitation by a single family unit and lawfully able to be used as a place of residence.[7] The transaction commencement day is defined for an owner-builder arrangement, as the day the laying of the foundations starts[8] must be on or after 1 August 2011 and before 1 May 2012.[9] The home must (generally) be ready for occupation as a place of residence within the prescribed building period, which is defined to mean, within 18 months of the day the laying of the foundations starts.[10]

Ms O'Neill’s grounds of appeal

  1. [6]
    The grounds of appeal may be summarised as follows:
    1. a)
      For Lot 3, the Tribunal erred in finding that the day the laying of the foundations started was the slab inspection date (24 March 2013), not the start of foundation excavation (27 March 2012); and
    2. b)
      For Lot 1, the Tribunal erred in determining that a final certificate is required to demonstrate that a building is a home fit for human habitation, and erred in determining that the requirement is not met.
  2. [7]
    Both grounds of appeal raise issues of mixed fact and law. Therefore, leave to appeal is required.[11] Leave to appeal will ordinarily only be granted where there is a reasonably arguable case of error, and reasonable prospects that if the appeal is allowed to proceed, that substantive relief will be obtained and it is necessary to correct a substantial injustice.
  3. [8]
    New evidence will ordinarily only be allowed on appeal where it was not reasonably available at the time of the hearing, and had it been, a different outcome is likely.[12]

Ground 1: In relation to Lot 3, did the Tribunal err in finding that the day on which ‘the laying of the foundations’ commenced was the date of slab inspection?

The Tribunal’s decision

  1. [9]
    The Tribunal considered the scheme of the BBG Act in some detail. The Tribunal appears to have been satisfied that Ms O'Neill met the eligible-builder arrangement criteria, except in relation to the transaction commencement day.[13]
  2. [10]
    However, the learned Member concluded, based on the final inspection certificate, that the laying of the foundations had not started on or after 1 August 2011 and before 1 May 2012. The certificate records that the slab stage inspection occurred on 22 April 2013. He therefore considered that the transaction was not an eligible transaction, and confirmed the Commissioner’s decision.

Discussion

  1. [11]
    Ms O'Neill submits that, if allowed as new evidence, an invoice from Triple M Landscapes establishes that the laying of the foundations commenced on 27 March 2012. Accordingly, she says she meets the transaction commencement day requirement for the BBG Act. The invoice predates the contract with Mackay and Sons, but Ms O'Neill submits that because she is an owner builder, the date of the contract is irrelevant.
  2. [12]
    Ms O'Neill also seeks to rely upon an email dated 23 April 2014 from a review officer in the Commissioner’s office. The email purports to set out the Commissioner’s approach to determining the day of commencement of laying of the foundations. Ms O'Neill considers it confirms her case. The email is irrelevant because the Tribunal must determine the proper construction to be placed on legislative requirements. We do not need to discuss the email further. However, we discuss the Triple M invoice below.
  3. [13]
    It is useful to note here, that in its review jurisdiction, the Tribunal must hear and decide the review of the objection decisions by way of reconsideration of the evidence before the Commissioner, unless the Tribunal allows new evidence in the interests of justice.[14] In the review, the Tribunal allowed new evidence, relevantly, allowing the final inspection certificate for Lot 3 (which Ms O'Neill had provided to the Commissioner after the objection decision) into evidence.[15]
  4. [14]
    We note that on 17 April 2014, a Member had made a direction following a compulsory conference for Ms O'Neill to file and serve any further material on which she sought to rely. She then filed a copy of an invoice from Triple M Landscapes dated 27 March 2012 in the Tribunal on 6 May 2014. She did not file an application for new evidence, seeking orders to rely upon the invoice. It was made out to Penny O'Neill, 41 Whites Road, Manly for a total of $1089.00 and contains the following details:

10 hours bobcat and movi excavator hire at above address to site clear for concrete slabs & footing for three new homes to be built on subdivision.

  1. [15]
    An oral hearing was not held. The Tribunal made its decision on the review in an on the papers hearing on 26 September 2014. The invoice from Triple M Landscapes is not referred to by the Tribunal in its decision and does not appear to have been considered by it. Ms O'Neill now seeks to rely upon the invoice from Triple M Landscapes in the appeal proceedings.
  2. [16]
    The Commissioner submits that the invoice is not properly before the Appeal Tribunal. She does not object to it being allowed into evidence, however, she says it could not affect the outcome, because it pre-dates the contract.
  3. [17]
    The Commissioner submits that laying of the foundations, which is not a defined term, properly interpreted according to the ordinary meaning of the words, is essential preparatory work for the construction of a home, including the digging of the foundations. It submits that it does not include more generalised clearing of land of the type suggested by the Triple M invoice. Noting that the application for the subdivision was not lodged until 19 April 2012, the Commissioner says the invoice can be evidence of no more than clearing of land for three homes which Ms O'Neill hoped to build if and when a subdivision was approved at some stage. Further, the Commissioner submits that the clearing work, done by a landscaper, was more likely to be akin to landscaping works than construction works. She submits that the final certificate provides the most accurate record of the date the transaction commenced.
  4. [18]
    We accept the Commissioner’s submissions about the meaning to be given to ‘laying of the foundations’. The purpose of the BBG Act is to stimulate the housing market in Queensland, including by increasing the supply of housing and supporting employment in the housing construction industry, by establishing a scheme for payment of a BBG.[16] Under s 13 of the BBG Act, the transaction commencement day, for an owner-builder arrangement is the day that ‘laying of the foundations’ begins.
  5. [19]
    On a plain reading, ‘laying of the foundations’, in the context of the BBG Act, is intended by the legislature to refer to the first step in the process of construction of a home. It is when construction of the home commences. The actual date is a question of fact in each case. In this case, the Triple M invoice refers to site clearing, albeit apparently in anticipation of building work. Indeed, at that time, it could be nothing more. There was no subdivision on which three separate homes could be built. The application for subdivision was lodged some three weeks later, approved some four months later, and not registered until almost 12 months later. According to the final certificate, the slab inspection, which we would reasonably infer was carried out within days or weeks of the laying of the slab, occurred some 13 months later on 22 April 2013. It is usual to dig the foundations immediately before the pouring of the slab.
  6. [20]
    Accordingly, we would not be satisfied that the Triple M invoice establishes the date of commencement of laying of the foundations. It could be no more than evidence of very preliminary land clearing, rather than laying of the foundations. We would accept that the best evidence of the day the laying of the foundations commenced is the final certificate. We would find that the laying of the foundations started in April 2013. There has been no error demonstrated in the Tribunal’s decision.
  7. [21]
    Therefore, even if the Triple M invoice was allowed as new evidence, the outcome of the proceedings would be unchanged.
  8. [22]
    For these reasons, we would not give leave to appeal in respect of Lot 3.
  9. [23]
    The application for leave to appeal is refused for Lot 3.

Ground 2: in relation to Lot 1, did the Tribunal err in determining that a final certificate is required to demonstrate that a building is a home fit for human habitation and/or err in determining that the requirement was not met?

The Tribunal’s decision

  1. [24]
    In considering the scheme of the BBG Act, the learned Member discussed the definitions of ‘home’,[17] ‘new home’[18] and ‘completed’.[19]
  2. [25]
    He noted the Commissioner’s practice of requiring final inspection certificates to determine whether the building is designed for or approved for human habitation by a single family and lawfully able to be used as a place of residence.[20] He referred to Ms O'Neill’s evidence to the effect that the final certificate had not yet been obtained as the house required rectification work, but that it had been occupied since June 2013.[21] He referred to the requirement that for an eligible owner-builder arrangement, the home (which must meet the definition of new home) must be ready for occupation as a place of residence within the prescribed building period of 18 months from the day the laying of the foundations started. He said:

Having regard to the type of eligible transaction which the application by Ms O'Neill represents that is an owner-builder arrangement it is a requirement that before the Tribunal can be satisfied she is entitled to the building boost grant that that (sic) the final inspection certificate be provided in respect of the application. This is so the Tribunal can be satisfied that the building is a home and then a new home and that the requirements in regard to the time periods are met. Ms O'Neill has indicated that she does not intend to rely on the final inspection certificates and as she has not provided all the information necessary for the Tribunal to be satisfied that a building boost grant is payable the application is refused and the Commissioner’s decision is confirmed.[22]

Discussion

  1. [26]
    Ms O'Neill submits that she could have provided the final certificate once rectification had been completed. Further, she submits that it is not a mandatory requirement under the BBG Act. Also, she submits that the fact that the house has been occupied, subject to council rates and all services have been connected that demonstrates that the home is fit for human habitation.
  2. [27]
    The Commissioner submits that determining whether a building is a home and then a new home must be determined as a question of fact. She submits that a final certificate is the best evidence (although acknowledging that there may be other relevant evidence) for determining whether a building is designed or approved for human habitation by a single family and lawfully able to be used as a place of residence. She relies upon s 24 of the Building Regulation 2006 (Qld) which provides the stages at which building work for construction of a single detached dwelling must be inspected. In this instance, she submits that as there was no final certificate or other relevant evidence available, the application must fail as the Tribunal could not be satisfied that the building was a home, or a new home. Therefore, she submits that s 17(a) is not satisfied.
  3. [28]
    Even if s 17(a) could be satisfied, the Commissioner submits that the Tribunal could not be satisfied on the available evidence of when the laying of the foundations commenced, in order to determine whether the requirements in relation to time periods are met (that is, whether the transaction commencement day was within prescribed period. Therefore, she submits s 17(b) is not satisfied.
  4. [29]
    Also, the Commissioner submits that s 17(c) cannot be satisfied on the available evidence. It requires that the home was ready for occupation as a place of residence within the prescribed building period. The Commissioner submits that the fact of occupation since June 2013 does not establish that the home was lawfully able to be occupied, or when it may have become so.
  5. [30]
    On a fair reading of the learned Member’s reasons for decision, it is sufficiently clear that he did not consider the BBG Act itself contained a requirement that the final inspection certificate be provided in order to satisfy the requirements for an eligible owner-builder arrangement. We acknowledge that in paragraph [46], in discussion he says that ‘it (providing the final certificate) is a requirement’ in order to satisfy the Tribunal that ‘the building is a home and then a new home and that the requirements in regard to time periods are met’. In context, he had earlier said (in paragraph [42]) that for the application to succeed, the Tribunal must be satisfied the building is a home. He noted that it was the Commissioner’s practice to require the final certificate in considering whether requirements were met. He was clearly cognisant that the legislation did not mandate its provision: rather he referred to its evidentiary value in considering the application. Further, it is apparent that he considered the evidence that was available about occupation of the house since June 2013.[23] However, he was not satisfied that the available evidence established that the legislative requirements were met. We agree.
  6. [31]
    In summary, although the learned Member’s statement in paragraph [46] concerning the ‘requirement’ for the final certificate could perhaps have been more clearly expressed, when read in context, we do not consider the learned Member erred as to the legislative requirements. Nor do we accept that he erred in finding that the evidence did not establish that the building is a home fit for habitation.
  7. [32]
    If we are wrong and if the Member erred, we would not, in any event, be satisfied that Ms O'Neill has provided evidence that the laying of the foundations commenced within the requisite period as required by s 17(b). This is because, even if the Triple M Landscapes invoice was allowed into evidence, we would not be satisfied that it was evidence that laying the foundations commenced prior to the latest date for commencement under the BBG Act (as discussed earlier, before 1 May 2012). As discussed earlier, we consider it is no more than evidence of preliminary land clearing for a subdivision that Ms O'Neill hoped to do at some future time if it was approved. Also, there is no evidence to satisfy us that the building is lawfully able to be used as a place of residence (as required to satisfy s 17(a) because of the definitions of home in s 7(1)(b) and new home in s 8). Further, the fact of occupation does not establish that a home was ready for occupation as a residence within the prescribed building period (that is, within 18 months of the day laying of the foundations started as required by s 17(c)).
  8. [33]
    Therefore, once again, even if the Triple M Landscapes invoice was allowed into evidence, the outcome would be unchanged.
  9. [34]
    Accordingly, because the application would not result in Ms O'Neill obtaining a different decision, we would not grant leave to appeal.

Orders

  1. [35]
    Accordingly, the application for leave to appeal is refused.

Footnotes

[1]  O'Neill v Commissioner of State Revenue [2014] QCAT 482.

[2]  BBG Act s 12.

[3]  Ibid s 6.

[4]  Ibid s 17.

[5]  Emphasis added.

[6]  Ibid s 8.

[7]  Ibid s 7.

[8]  BBG Act s 13(b).

[9]  Ibid s 17(b).

[10]  Ibid s 15.

[11] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) s 142.

[12] Council of the City of Wollongong v Cowan (1955) 93 CLR 435.

[13]  Ibid at [30]-[45].

[14]  BBG Act s 97(2)(a).

[15] O'Neill v Commissioner of State Revenue [2014] QCAT 482, at [42]-[44].

[16]  BBG Act s 3.

[17] O'Neill v Commissioner of State Revenue [2014] QCAT 482 at [6].

[18]  Ibid at [5].

[19]  Ibid at [7]. BBG Act Schedule, ‘completed’ for an owner-builder arrangement, means when the building is ready for occupation as a home; and, if there are any other requirements for completion of the contract or arrangement prescribed under a regulation, the requirements are completed.

[20]  Ibid at [42].

[21]  Ibid at [46].

[22]  Ibid at [46].

[23]  Ibid at [46], first sentence.

Close

Editorial Notes

  • Published Case Name:

    O'Neill v The Commissioner of State Revenue

  • Shortened Case Name:

    O'Neill v The Commissioner of State Revenue

  • MNC:

    [2015] QCATA 108

  • Court:

    QCATA

  • Judge(s):

    Presiding Member Howard, Member Paratz

  • Date:

    16 Jul 2015

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
O'Neill v Commissioner of State Revenue [2014] QCAT 482
10 citations
Jump To
Cite 1 - [2014] QCAT 482
Cite 2 - [2014] QCAT 482
Cite 3 - [2014] QCAT 482
Cite 4 - [2014] QCAT 482
Cite 5 - [2014] QCAT 482
Cite 6 - [2014] QCAT 482
Cite 7 - [2014] QCAT 482
Cite 8 - [2014] QCAT 482
Cite 9 - [2014] QCAT 482
Cite 10 - [2014] QCAT 482
Wollongong City Council v Cowan (1955) 93 CLR 435
3 citations
Jump To
Cite 1 - (1955) 93 CLR 435
Cite 2 - (1955) 93 CLR 435
Cite 3 - (1955) 93 CLR 435

Cases Citing

Case NameFull CitationFrequency
D & V Hambling Pty Ltd v Commissioner of State Revenue [2017] QCAT 4152 citations
Pennisi & Pennisi v Commissioner of State Revenue [2025] QCAT 3271 citation
1

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