Fell v Commissioner of State Revenue [2025] QCAT 496

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Fell v Commissioner of State Revenue [2025] QCAT 496 PARTIES: JOHN LESLIE FELL (applicant) v COMMISSIONER OF STATE REVENUE (respondent) APPLICATION NO/S: GAR327-22 MATTER TYPE: General administrative review matters DELIVERED ON: 1 December 2025 HEARING DATE: 25 January 2024 HEARD AT: Brisbane DECISION OF: Member Richard Oliver ORDERS: The decision of the Respondent is confirmed. CATCHWORDS: TAXES AND DUTIES AND HOME OWNERS GRANT – ADMINISTRATIVE DIRECTION – QUEENSLAND – where applicant entered into a building contract with the respondent for the construction, delivery and installation of a modular home on the applicant’s land – where connection to power and sewage system excluded by the builder under the contract – where the applicant engaged a separate contractors to bring power to the house site and connect power to the switchboard – where contractor engaged to install home sewage treatment plant and connect it to the house – whether building contract was a comprehensive contract as defined in clause 14 of the Administrative Direction – whether builder undertook all of the building work under the contract First Home Owner Grant and Other Home Owner Grants Act 2000 (Qld). Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20 Commissioner of State Revenue v Reynolds [2025] QCATA 58 Commissioner for State Revenue v Scott-Holland [2025] QCATA 116 Commissioner of State Revenue v Taske [2023] QCATA 121 Edwards v Commissioner for State Revenue [2023] QCAT 413 -- 1 of 8 -- 2 Francis v Commissioner of State Revenue [2023] QCAT 464 Scott-Holland v Commissioner of State Revenue [2023] QCAT 203 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: Ms Hartridge of counsel instructed by the respondent REASONS FOR DECISION [1] On 23 November 2020 Mr Fell entered into a building contract (“the contract”) with Bay Investments QLD Pty Ltd, a registered builder, trading as Oly Homes for the supply and installation of an Oly “Getaway” home. The Getaway is a modular home that is prefabricated and taken to site for installation. [2] The land for the installation is at Thompson Valley Rd, Valdora which is in the hinterland west of the Coolum and the Bruce Highway. It is an acreage block, which does not have integrated electric power or sewerage to the frontage.1 To prepare for the installation of the modular home Mr Fell directly engaged a contractor to have power taken from the supply on the opposite of Thompson Valley Rd to his boundary then an underground cable to the building site. Similarly, and not unusually, he engaged a contractor to install a home sewage treatment plant system with pipes taken from the system to the house site for connection into the internal plumbing. That work, in particular the actual connection of: (a) the external mains power to the switchboard of the house which was included the construction; and (b) the internal sewer outlet to the pipe coming from the septic system, was not included in the contract with Oly Homes. In fact, it was excluded in the contract by the builder. [3] To be clear, the building contract included all internal electrical and plumbing work. Once the mains power was connected to the switch board, the house would be on power. Once the septic system was plumbed into the house discharge pipe/s the toilets could be flushed. Presumably grey water could also be discharged. [4] The contract price for the modular home was $126,860.00. Its construction also fell within the Queensland Building and Construction Commission Home Warranty Insurance Scheme. [5] As the building contract was entered into between 4 June 2020 and 31 March 2021, it attracted the Commonwealth’s HomeBuilder Grant administered under the First Home Owner and Other Home Owner Grants Act 2000 (Qld). That is, for an eligible transaction and compliance with the Administrative Direction (“the Direction”) issued 1 As in new subdivisions where power, water and sewage are accessed at the front of the block. -- 2 of 8 -- 3 jointly by the State Government and the Australian Government, a homeowner can receive a grant of $25,000 for a new home.2 [6] Mr Fell applied for the grant on the basis that he had met all of the criteria under the Direction. On 3 February 2021, after a review, the Commissioner rejected the application. The Commissioner contends the contract was not an “eligible transaction” under the Direction because: (a) A comprehensive home building contract is defined in paragraph 14 of the Administrative Direction to mean a contract under which a builder undertakes to build a home from the start of building work to the point where the home is ready for occupation. (b) The usual indicia of a home includes connected power and plumbing, which must, at a minimum, meet the national requirements prescribed under the National Construction Code3 which was not supplied by the builder. [7] Mr Fell then filed an application to review that decision in the Tribunal. He relied on the above reasons for challenging the decision of the Commissioner which are that it was always his responsibility to take power and also the sewage and wastewater infrastructure to the house. [8] The Tribunal’s function under s 20 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) is to produce the correct and preferable decision. That is review all of the material and produce a decision independent of that of the Commissioner. In other words, as has often been said, stand in the shoes of the Commissioner.4 [9] In reasons for rejection the Commissioner, by a delegate, put the position as follows:5 While the builder may be responsible for completing all internal electrical wiring, smoke alarms, and internal plumbing the extent necessary for the building to be used as a home, these components are not connected to electrical mains, the septic system, rainwater tanks, or the gas or electric hot water system. You were responsible for arranging all of this therefore, because essential electrical and plumbing work was excluded from the contract, I agree with the original decision that the contract is not a comprehensive building contract as defined in paragraph 15 of the home builder direction. It follows the transaction you entered in into is not an eligible home builder transaction under paragraph 1.b. of the home builder direction and therefore, you are not entitled to payment of the grant. For completeness, additional submissions made by you confirmed the contract excluded plumbing and electrical works. You previously advised the Commissioner that you will be responsible for subcontracting the plumber an electrician to undertake the work excluded under the contract. You provided a statement advising that friend undertook all the electrical works on your home for free, and an invoice made out to you from a third party service provider in relation to plumbing works to be conducted on your property. 2 This is explained in detail in Scott-Holland v Commissioner of State Revenue [2023] QCAT 203. 3 S1 21 documents page 4: objection decision paragraph [9]. 4 Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58. 5 Exhibit 3, Respondent’s s 21(2) documents page 4. -- 3 of 8 -- 4 [10] I have considered the evidence relied on by the Commissioner to support the above statement. It is instructive. Firstly, as for the electrical work, there is no independent evidence of what work was undertaken. The evidence comes from Mr Fell who sent a document to the Commissioner stating that: Regarding Home Build application HZLGSW – our friend undertook all electrical works on our home on 102 Thomson Valley Road, Valdora Qld 4561. This was done free of charge. [11] The electrical work is further particularised in a statement from Mr Fell filed on 30 January 2023. In that statement he says: The Electricity Services work that we conducted was to bring power from the mains (located across the road) to our land and to the building via underground conduit. I added that it was reasonably practicable at the time for the electrician we used to do this work to our land simply connect the wires to the already installed electrical mains switch board that Oly Homes had included in their building works. [12] Secondly, the plumbing work which is described in an invoice/quote from Sunnycoast Plumbing and Gas dated 6 October 2021 for a total cost of $14,590.68. The scope of works is as follows:6 (a) Hot/cold water Rough in; (b) Any extra plumbing labour required will be $100/hr plus GST; (c) Wastewater Treatment System Installation Ozzikleen Rp10A, sprinkler system, excavation and commissioning. [13] By reference to the statement filed on 30 January 2023, Mr Fell said: The plumbing services that we conducted was to provide a water supply and an onsite wastewater treatment system to our rural land (no town services available). It was again reasonably practicable for the plumber we engaged to provide these services to simply connect the pipes to the buildings rough in that was completed by Oly Holmes. [14] To avoid any doubt, on this review I find that the applicant had engaged the electrician to bring in the mains power from the street to the house site. When ready, he engaged the electrician to then connect the mains power to the switch board installed by Oly Homes. Apart from connection the power, no other electrical work was done to the modular home. [15] I also find that the plumber who installed the HSTP and wastewater and drainage system connected the system to the existing pipework (rough in) from the house. He had to do this because it was excluded under the contract by the builder. [16] There is no evidence put before the Commissioner or this tribunal that Mr Fell engaged any contractor to do any building work to, in or on the modular home. All his work was external. Subject to the physical connection to power and sewage, the home was completed by Oly Homes. That is not contested. 6 Ibid page 81. Also referred to in the Respondent’s preliminary submissions filed 3 November 2022 at paragraph 40 (noting the incorrect invoice amount). -- 4 of 8 -- 5 [17] The Commissioner relies on the definition in the Administrative Direction before an applicant is eligible for the grant. The building contract has to be a transaction which is defined in paragraph 1(b): A comprehensive home building contract made by the freehold owner in Queensland or a person who will, prior to completion of the comprehensive home building contract be the freehold owner of land in Queensland, to have a new home built on the land, 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 6 months of the contract commencement date. [18] There is no dispute that the building contract satisfies the timeframe for the grant. The Commissioner contends that this is not an eligible transaction because the subject contract is not a “comprehensive home building contract” as it does not satisfy the definition set out in paragraph 14 of the Direction. A comprehensive home building contract means a contract under which a builder undertakes to build a home from the start of the building work to the point where the home is ready for occupation and, if for any reason, the work to be carried out under the contract is not completed, includes any further contract under which the work is to be completed. [19] The Commissioner submits that the reason it does not satisfy the definition is because the definition does not contemplate a homeowner contracting with a third party to connect the power and the sewage/wastewater to the house. [20] The issue for determination here is whether Mr Fell in undertaking the necessary external works and connecting the services to the house disqualifies him from being eligible for the grant. To be clear the Commissioner does not rely on the actual external infrastructure works undertaken but just the engagement of the contractors to connect those works to the house. It is also not contended that the modular home was not complete and not ready for occupation. Oly Homes did all it had to do under the contract, but it was waiting for connection of the services before issue final certificates and handover to Mr Fell for occupation. [21] I will digress for a moment. Because of the involvement of Oly Homes as the builder, the decision in this matter has been delayed due to a pending appeal involving similar issues raised in this primary review application. In Commissioner of State Revenue v Scott-Holland7 (“Scott-Holland”) the appeal tribunal8 set aside a decision of the tribunal at first instance which found that even though contractors were engaged by Mr Scott-Holland to undertake similar external works (supply of power and HSTP), which were excluded under the contract, he was eligible for the grant. That is because the primary tribunal was satisfied that the contract fell within the definition of “comprehensive home building contract”. [22] In that case Mr Scott-Holland purchased a “Surfside 3” modular home from Oly Home for $228,860.00. The contract had similar standard9 exclusions as Mr Fell’s contract. In particular: 7 [2025] QCATA 116. 8 Constituted by a judicial member./ 9 My emphasis. -- 5 of 8 -- 6 • supply of water from mains to house including hot and cold pipes under house (water and waste pipes are run internally from fitting through floor only); • connection of electricity mains and re connection of junctions where required • connection of electric hot water service, electrical and plumbing.10 [23] The evidence in Scott-Holland in relation to the engagement of contractors to undertake the excluded work was set out in the reasons of the primary decision.11 The work was similar to that here, and any additional work was necessary for occupation. It included Noosa Electric to connect power to the site, fit smoke alarms, gas hot water and reticulate gas. Lorensen Plumbing did the drainage and onsite home sewage treatment plant. Walker Quality Plumbing connected the sewage to the house as well as the stormwater drainage. This work was all done during the time when Oly Homes had possession of the site under the contract. [24] The evidence in Scott-Holland was in a little more detail as to the work to be undertaken and, like here, not included in the building contract because of the standard exclusions. [25] There is an obvious reason for the exclusions in the Oly Homes contracts. Their specialty is to build modular homes to be located on remote sites prepared by the owner, where power and water services are not available or not readily available. Also, on blocks necessitating home sewage treatment plants (or septic systems if permitted by the local authority). This case and Scott-Holland are not exactly on all fours with other cases decided in the tribunal like those referred to in the Scott-Holland appeal decision referred to below and reied upon. These related to new home constructions onsite, from the ground up, where external facilities/services are readily available. [26] In Commissioner of State Revenue v Taske12 (“Taske”) the homeowner contracted with a third party to undertake an essential part of the building work being the supply and tiling of the wet area in the house while under construction. This work would normally be included in the specification but because the builder could not supply the particular tiles that the Taskes wanted this work carved out of the contract so they could engage a tiler to supply and lay their tiles of choice and also do the waterproofing. It was held that this building work was an essential part of the building work to satisfy the definition, therefore they were ineligible for the grant. [27] In Edwards v Commissioner for State Revenue13 (“Edwards”) the tribunal found that the applicant, by outsourcing the cabinetry work for the new home meant, following the Taske appeal decision, the contract did not meet the eligibility criteria. In Commissioner of State Revenue v Reynolds14 the electrical work for the new house was outsourced to the owner’s father who carried out the electrical work at no cost. It was held on appeal that as this was a critical part of the build it did not meet the eligibility criteria of the “comprehensive home building contract”. Also, in Francis v 10 Exhibit 3 page 15. 11 Scott-Holland v Commissioner of State Revenue [2023] QCAT 203, [7]. 12 [2023] QCATA 121. 13 [2023] QCAT 413. 14 [2025] QCATA 58. -- 6 of 8 -- 7 Commissioner of State Revenue15 (“Francis”) the owner arranged for the kitchen cabinetry to be installed by a third party; hence it did not meet the eligibility criteria. [28] For the reasons stated, the Oly Homes contracts are distinguishable from the usual home building contract like that considered in the Taske appeal because of the exclusions for modular homes. These homes are prefabricated at a factory. When fabricated and ready for delivery they contain all of the necessary items usually found in a house constructed from scratch on site, such as plumbing, electrical fit-out, kitchen cabinetry, wet area fittings etc. They are ready to be lived in once on site and fixed to the particular foundations, usually it seems, steel posts. The contract does not include a contractual obligation to connect electricity or water to the house, that is clearly the owner’s responsibility under the contract’s standard exclusions. [29] The appeal tribunal in Scott-Holland, by its reliance on the appeal decision in Taske, proceeded on the basis that this contract should be treated the same way as a standard home building contract for a new build onsite where the builder takes water from a water main on the road frontage. Sewage is connected into the jump up in the sewage line either at the front or the rear of the block of land. Stormwater is the responsibility of the builder as well. The electrician is contracted to wire the house and install the switch board, connects power to the external mains power either through overhead lines or underground. There is also no doubt that on a unserviced site, the builder can also attend to all of these aspects of the building work, but it is not critical when costs are to be kept to a minimum. [30] Here, the circumstances differ somewhat from Scott-Holland. The evidence here is that the home was completed and ready for occupation, and in fact could have been occupied however, to get the final certificates, the power which was already in place had to be connected into the house presumably via the switch board. The sewage waste pipe/s had to be plumbed into the waste pipe/s already in situ in the finished house. Those two tasks, which Oly Homes was never contracted to do and excluded by it from the contract, according to the Commissioner, renders the contract ineligible for the grant. That maybe so in a case of a standard building contract where all these aspects of the building work are usually included in the contract and the crave out is at the request of the owner, but not necessarily where in the very contract sought to be relied on for the grant they are excluded by the builder. The Commissioner’s contention is that these services should have been included in the contract. [31] However, despite those differences and the fact that the appeal tribunal did not specifically take into account the exclusion requiring the owner to attend to these matters, the Scott-Holland appeal decision is binding on the tribunal at first instance, and there is not enough difference to distinguish this case from the appeal decision. The question of whether the tribunal at first instance is bound by a decision of the appeal tribunal was considered at some length in Clark v Queensland Building and Construction Commission [2024] QCAT 329 at [36] – [47]. The conclusion reached by Member Lumb is that the tribunal at first instance is bound by any appeal decision which is on point. Given that it was the construction of the definition of “a comprehensive home build contract” that was considered by the appeal tribunal in Taske and Scott-Holland, I must follow those decisions. 15 [2023] QCAT 464. -- 7 of 8 -- 8 [32] Even so, to adopt the Commissioner’s contention that the connection of the mains power to the switchboard by an alternate contractor in circumstances like these could lead to absurd outcomes.16 [33] An important feature of this build is that, and presumably taken into account but not expressly considered by the appeal tribunal, these items were not an exclusion at the request of Mr Fell, like in other cases such as Taske, Edwards and Francis where it was the owner’s option to outsource, or carve out, part of the building work from the contract. Mr Fell did not have a choice and if Mr Fell did not attend to these matters there would be no power or wastewater system and therefore it was not at the point where it was ready for occupation. [34] Because of the peculiar circumstances pertaining to modular homes, and the exclusions contained in the contract, and had it not been for the appeal decision in Scott-Holland, I may have come to a different conclusion. However, because this case is binding authority I am compelled to follow it a because firstly; it is so factually ll but the same and, secondly; it follows the appeal decision of Taske, I must confirm the Commissioner’s decision to reject the claim. 16 As suggested by Member Lember (as she then was) in Scott-Holland v Commissioner of State Revenue [2023] QCAT 203, [46], with which I agree. -- 8 of 8 --