Commissioner of State Revenue v Scott-Holland [2025] QCATA 131

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Commissioner of State Revenue v Scott-Holland [2025] QCATA 131 PARTIES: COMMISSIONER OF STATE REVENUE (applicant/appellant) v BRADLEY SCOTT-HOLLAND (respondent) APPLICATION NO/S: APL159-23 ORIGINATING APPLICATION NO/S: GAR628-21 MATTER TYPE: Appeals DELIVERED ON: 18 November 2025 HEARING DATE: 9 May 2025 HEARD AT: Brisbane DECISION OF: Judicial Member Rinaudo AM ORDERS: IT IS THE DECISION OF THE APPEAL TRIBUNAL THAT: Pursuant to section 146 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the Tribunal made an error of law in its decision dated 3 May 2023. Accordingly, leave to appeal is granted, and the appeal is allowed. The decision under review is set aside and the original decision by the Commissioner of State Revenue is confirmed. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – WHAT IS – GENERALLY – where the respondent engaged a home builder to supply and install a home on land owned by the respondent – where the respondent submits that the contract entered into with the home builder was a comprehensive home building contract within the definition of the home builder direction – where the respondent submits that contract fulfilled the eligibility criteria and was an eligible transaction for the purposes of the HomeBuilder Grant – where the respondent made an application to the Tribunal to set aside the decision of the -- 1 of 8 -- 2 appellant in relation to the HomeBuilder Grant – where the Tribunal found that the transaction was an eligible transaction – where the appellant makes an application to the Appeal Tribunal and submits the Tribunal made an error of law – whether the appeal should be allowed First Home Owner Grant and Other Home Owner Grants Act 2000 (Qld), s 5, s 25Q, s 59 Queensland Building and Construction Commission Act 1991 (Qld) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 25, s 26, s 142, s 146 Alexander v Commissioner of State Revenue [2023] QCAT 409 Allen v Queensland Building and Construction Commission [2023] QCATA 66 Commissioner of State Revenue v Reynolds [2025] QCATA 58 Conaghan v Commissioner of State Revenue [2023] QCAT 253 Edwards v Commissioner for State Revenue [2023] QCAT 413 Francis v Commissioner of State Revenue [2023] QCAT 464 Pickering v McArthur [2005] QCA 294 Reynolds v Commissioner of State Revenue [2024] QCAT 160 Scott-Holland v Commissioner of State Revenue [2023] QCAT 203 Taske v Commissioner for State Revenue [2022] QCAT 416 Commissioner of State Revenue v Taske [2023] QCATA 121 APPEARANCES & REPRESENTATION: Applicant: S Spottiswood, instructed by Queensland Revenue Office Respondent: Self-represented REASONS FOR DECISION [1] The Commissioner of State Revenue (‘the applicant’) seeks leave to appeal or appeal a decision delivered on 3 May 2023 in the matter of Scott-Holland v Commissioner of State Revenue [2023] QCAT (unreported).1 1 See Scott-Holland v Commissioner of State Revenue [2023] QCAT 203. -- 2 of 8 -- 3 [2] The decision of the Tribunal was that Mr Scott-Holland’s (‘the respondent’) contract with Oly Homes satisfies the requirements of a ‘comprehensive home building contract’ under the home builder direction.2 [3] The Tribunal set aside the Commissioner of State Revenue’s decision dated 21 September 2021 and the application was returned to the Commissioner of State Revenue for reconsideration on that basis, noting that there are additional eligibility assessments to be undertaken. [4] The applicant submits that the Tribunal erred primarily by misconstruing the definition of a ‘comprehensive home building contract’ and associated definitions in or applied by the home builder direction in the context of the home builder direction and the First Home Owner Grant and Other Home Owner Grants Act 2000 (Qld) (‘FHOG Act’), and in particular the definition of the words ‘building work’.3 [5] The applicant also submits that the Tribunal erred:4 (a) in interpreting the contract between the applicant, Ms Taske [sic], and the builder, Oly Homes (the Contract), as being within the scope of the definition of “comprehensive home building contract”, despite the express exclusion of certain works from the Contract, on the basis that the obligations and tasks undertaken by Oly Homes amounted to the carrying out of building work for the purposes of that definition (as concluded at paragraph [39]); and (b) in failing to properly apply statutory interpretation principles in accordance with law: (i) in concluding as to the purpose of the [home builder direction] in part 3B of the FHOG Act and specifically the category of eligible transaction, being a comprehensive home building contract; and (ii) in finding that the interpretation as adopted by the Commissioner of State revenue in his Objection Decision, resulted in “absurdity” and the “unintended exclusion of new home builds” at paragraph [46] of the Decision; and (iii) generally in interpreting part 3B and the [home builder direction]; and (c) having regard to these errors, on the facts as found or not in dispute, in finding that the Contract was a comprehensive home building contract under the [home builder direction].\ Background to the respondent’s contract [6] As stated by the learned Tribunal Member in her decision, the respondent engaged modular home builder, Oly Homes, to supply and install a modular home on land he owned. Oly Homes were to supply and install the new Oly ‘Surfside 3’ home for 2 Administrative Direction: ‘Australian Government HomeBuilder Grant – Queensland’ (3 May 2023) [14] (‘Home builder direction’). 3 Application for leave to appeal or appeal, filed in the Tribunal 31 May 2023, Annexure A, Part C – Grounds of Appeal [a]. 4 Ibid [b]-[d]. -- 3 of 8 -- 4 $228,860.00, with the home to be built at an offsite factory then delivered to and installed on the land. The contract did not include works in relation to:5 (a) the connection and 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); (b) final pressure testing of water pipes on connection; (c) connection of electrical mains and reconnection of junctions where required; (d) supply and installation/connection of water pipes from floor level; (e) connection of gas to hot water system and/or oven or cooktop (no gas piping supplied to appliances); (f) mounting and installation of supplied gas hot water service; (g) downpipes, water tanks, water pressure pumps and external taps; (h) mounting and installation of supplied gas hot water service; (i) installation of ‘point of attachment’ for overhead electrical supply including back stay anchor if required; (j) connection of electrical hot water service, electrical and plumbing; (k) installation of smoke detectors into supplied cradles, to be completed by homeowner’s electrician; and (l) any items not specifically mentioned in the building contract. Original decision [7] The learned Tribunal Member had regard to section 25Q of the FHOG Act, which says: Application for grant and when grant is payable (1) A person who is eligible to apply for a home builder grant under the home builder direction may apply for the grant. (2) An application for a home builder grant must comply with the home builder direction. (3) An applicant for a home builder grant is entitled to be paid the grant if— (a) 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 (b) the transaction for which the grant is sought is an eligible home builder transaction; and (c) the relevant requirement in relation to the eligible home builder transaction has been met. [8] In subsection 5(1) of the FHOG Act, an ‘eligible transaction’ relevantly includes: 5 Scott-Holland v Commissioner of State Revenue [2023] QCAT 203, [7(c)]. -- 4 of 8 -- 5 a comprehensive home building contract made by the owner of land in the State, or a person who will on completion of the contract be the owner of land in the State, to have a new home built on the land, if the contract is made on or after 1 July 2000 [9] The Tribunal noted in the dictionary contained in the schedule to the FHOG Act, that:6 (a) a ‘comprehensive home building contract’ means 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 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’; (b) ‘home builder direction’ means the administrative direction called “Australian Government Homebuilder Grant—Queensland” made by the Minister and published on the department’s website’; and (c) ‘home builder grant’ means a grant payable under part 3B.’ [10] The home builder direction states:7 On 4 June 2020, the Australian Government announced the $25,000 HomeBuilder Grant (the grant), available to eligible homeowners who build a new home or substantially renovate an existing home where the contract is signed between 4 June 2020 and 31 December 2020. [11] Eligible transactions include a comprehensive home building contract – made by the freehold owner of land 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 18 months of the contract commencement date. [12] In considering the definition of ‘comprehensive home building contract’, the Tribunal had regard to the decision of Taske v Commissioner for State Revenue [2022] QCAT 416 (‘Taske’). The Tribunal specifically relied on paragraphs [30]-[31] and [34]-[39] of the decision in Taske. As a consequence, the Tribunal in this case made the following comment at paragraph [46]:8 Respectfully, I find that adopting the [Commissioner of State Revenue's] narrow interpretation of the home builder direction results in: (a) absurdity, namely, in Mr Scott-Holland’s case, inequitable treatment of owners of land that is not connected to town water and other utilities (namely, of rural/semirural land owners); and (b) the unintended exclusion of new home builds from receiving the very grant that were introduced to stimulate the build in the first place, contrary to the purpose and intent of the policy that introduced the grant, 6 First Home Owner Grant and Other Home Owner Grants Act 2000 (Qld) sch Dictionary (emphasis in original). 7 Home builder direction, Background. 8 Scott-Holland v Commissioner of State Revenue [2023] QCAT 203, [46] (emphasis in original). -- 5 of 8 -- 6 and I do not prefer it to a broader interpretation that is both consistent with what it means to “build" under the [Queensland Building and Construction Commission Act 1991 (Qld)] and with the context and purpose of the home builder grant as stated. “.. a home" [13] The decision in Taske was appealed and on 29 September 2023, the Appeal Tribunal provided its reasons.9 For the reasons stated by the Appeal Tribunal the decision in Taske was set aside and the original decision of the Commissioner of State Revenue of 29 November 2021 was confirmed. [14] The Appeal Tribunal noted that the limit of $750,000.00 for the transaction plus the unencumbered value of the land could easily be circumvented and rendered ineffective by owners simply having various works performed outside of the contract and thereby not considered to be subject to the monetary limit. The Appeal Tribunal noted that clearly was not what was intended. [15] The Appeal Tribunal also found that the Tribunal Member had erred in finding that the builder being ‘responsible’ for the work of the other contractor, under the Queensland Building and Construction Commission Act 1991 (Qld), was enough to bring the construction of the home within the one contract it had with the owner, such as to satisfy the meaning of a ‘comprehensive home building contract’. [16] In Taske, the Tribunal noted that the definition of ‘comprehensive home building contract’ uses the words ‘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’. The words are not ‘undertakes or otherwise has responsibility for the construction of a home’. [17] The Appeal Tribunal found that it was satisfied that the Tribunal Member erred in law by finding that ‘the responsibility’, assumed or falling upon the builder, made the builder’s contract with the other owners a ‘comprehensive home building contract’ within the definition of the home builder direction. [18] The Appeal Tribunal was satisfied that the prerequisites for a ‘comprehensive home building contract’ were not met in the contract between the respondent and her husband and the builder or otherwise. There is no eligible transaction, and the grant was not payable to the respondent and her husband. [19] The following passage in paragraph [33] of the appeal decision in Taske is equally apposite to the circumstances of the current appeal:10 As was clearly and respectfully acknowledged by the Applicant, neither the Respondent nor her husband have done anything wrong or inappropriate in applying for the grant. In the circumstances outlined by them, their doing so can be understood. The decision about their ineligibility is one simply based on interpretation of the legislation and legislative instruments that applied in discerning the intent behind those provisions. If that intent as to eligibility has not been conveyed appropriately to the public then that is perhaps attributable to a failure in communication on the part of Government that might need to be considered in respect of any such future schemes. 9 Commissioner of State Revenue v Taske [2023] QCATA 121. 10 Ibid [33]. -- 6 of 8 -- 7 Applicable law [20] The jurisdiction to hear appeals is conferred upon the Tribunal pursuant to section 25 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). Section 25 states as follows: The Tribunal’s appeal jurisdiction is— (a) the jurisdiction conferred on the Tribunal by section 26; and (b) the jurisdiction conferred on the Tribunal by an enabling Act to hear and decide an appeal against a decision of another entity under that Act. [21] Section 26 of the QCAT Act states that: The Tribunal has jurisdiction to hear and decide an appeal against a decision of the Tribunal in the circumstances mentioned in section 142. [22] The applicant appeals pursuant to section 142 of the QCAT Act. Subsection 142(1) states as follows: A party to a proceeding may appeal to the Appeal Tribunal against a decision of the Tribunal in the proceeding if a judicial member did not constitute the Tribunal in the proceeding. [23] Subsection 142(3) states that an appeal under subsection (1) against any of the listed decisions of the Tribunal may be made only if the party has obtained the Appeal Tribunal’s leave to appeal. [24] In Allen v Queensland Building and Construction Commission [2023] QCATA 66 at [2], Judicial Member McGill SC summarised the approach to leave in the Appeal Tribunal: As a general proposition, when leave to appeal to the Appeal Tribunal is required, it will be granted only where there is a reasonable argument that the decision was attended by error and an appeal is necessary to correct a substantial injustice caused by that error, or where the appeal raises a question of general important upon which further argument and a decision of the Appeal Tribunal would be to the public advantage. An Appeal Tribunal would not usually disturb findings of fact on appeal if the evidence is capable of supporting the finding, and it is not contrary to compelling interference. If leave to appeal is granted, the appeal is by way of rehearing so far as it is against a decision on a question of fact, or of mixed fact and law: the QCAT Act section 147. Otherwise it is an appeal which will only correct an error of law: the QCAT Act section 146. [25] The principles were also referred to by Senior Member Brown and Member Traves in Campbell v Queensland Building and Construction Commission [2021] QCATA 34 at [17]: The relevant principles to be applied in determining whether to grant leave are well established: is there a reasonably arguable case of error in the primary decision; is there a reasonable prospect that the applicant will obtain substantial relief; is leave necessary to correct a substantial injustice to the applicant caused by some error; is there a question of general importance upon which further argument, and a decision of the appellate court or Tribunal, would be to the public advantage. [26] Leave to appeal will usually only be granted where it is necessary to correct a substantial injustice to the applicant and where there is a reasonable argument that -- 7 of 8 -- 8 there was an error to be corrected.11 In this case, leave to appeal is required as the matter concerns the proceedings for a Minor Civil Dispute.12 [27] The FHOG Act is an enabling Act for the purposes of section 25 of the QCAT Act.13 Appeal decision [28] Since the decision of the Appeal Tribunal in Taske, a number of decisions have followed the reasoning, including Francis v Commissioner of State Revenue [2023] QCAT 464; Edwards v Commissioner for State Revenue [2023] QCAT 413; Alexander v Commissioner of State Revenue [2023] QCAT 409; and Commissioner of State Revenue v Reynolds [2025] QCATA 58. Each of these decisions, relying on the appeal decision of Taske, affirmed the original decision. [29] The decision of Conaghan v Commissioner of State Revenue [2023] QCAT 253 to which I was referred predated the appeal in Taske. I was also referred to the decision of Reynolds v Commissioner of State Revenue [2024] QCAT 160 in which the decision of the Commissioner of State Revenue to reject the application was set aside and an order that the first homeowner grant should be paid to the applicant was made. It is not apparent on the face of that decision that that Tribunal was referred to the appeal in Taske – although it was heard well after the appeal decision in Taske was delivered. Although in that case, it appears that the Tribunal made a clear finding that the contract, including the electrical fit out for the home, is contained in one comprehensive home building contract. [30] I am satisfied that the reasoning in the appeal of Taske is sound and applies directly to the decision under review. [31] In the circumstances of this appeal, the Tribunal fell into error in its interpretation that the transaction was an eligible transaction by misconstruing the definition of the eligibility criteria, including that the contract entered into by the respondent was a “comprehensive home building contract” within the definition of the home builder direction. [32] Accordingly, there being a clear error of law, leave to appeal is granted and the appeal is allowed. The decision under review is set aside and the original decision is confirmed. 11 Pickering v McArthur [2005] QCA 294. 12 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142(3)(a)(i). 13 First Home Owner Grant and Other Home Owner Grants Act 2000 (Qld) s 59. -- 8 of 8 --