Alexander v Commissioner of State Revenue [2023] QCAT 409

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Alexander v Commissioner of State Revenue [2023] QCAT 409 PARTIES: DONALD FRASER ALEXANDER (applicant) v THE COMMISSIONER OF STATE REVENUE (respondent) APPLICATION NO/S: GAR637-21 MATTER TYPE: General administrative review matters DELIVERED ON: 24 October 2023 HEARING DATE: 21 March 2023 HEARD AT: Brisbane DECISION OF: Member Poteri ORDERS: The decision of the Commissioner of State Revenue made on 29 June 2021 to reject the application for a HomeBuilder grant to Donald Fraser Alexander is confirmed. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where an application for a HomeBuilder grant has been made to the Commissioner pursuant to provisions of the First Home Owner Other Home Owner Grants Act 2000 (Qld) – where the Commissioner has decided that the contractual arrangements for the erection of the dwelling house is not an eligible transaction pursuant to the First Home Owner Other Home Owner Grants Act 2000 (Qld) and its subordinate legislation – Where the home owner alleges that the contract arrangements are an eligible transaction because the arrangements should be construed as a comprehensive home owner building contract as required under the provisions of the First Home Owner Other Home Owner Grants Act 2000 (Qld) and its subordinate legislation Queensland Civil and Administration Act 2009 (Qld), s 20 First Home Owner Grant and Other Home Owner Grants Act 2000 (Qld), s 25Q, s 59, s 60 Queensland Building and Construction Act 1991(Qld) Administrative Direction – Australian Government HomeBuilder Grant Queensland 1 March 2021 -- 1 of 7 -- 2 Taske v Commissioner of State Revenue [2022] QCAT 416 Commissioner of State Revenue v Taske [2023] QCATA 121 APPEARANCES & REPRESENTATION: Applicant: Mr K Jubb, John Davies & Co, Solicitors Respondent: Ms S Spotiswood of Counsel instructed by the Commissioner of State Revenue REASONS FOR DECISION [1] The Applicant, (Alexander) is the registered proprietor of land (Property) situated at 616 Old Goombungee Road, Cawdor (Property). On or about 10 November 2020 Alexander entered into a building contract (Contract) with Arden Vale Homes Pty Ltd (Arden) to erect a dwelling house (Home) on the Property. [2] These proceedings relate to an application (Application) by Alexander to the Commissioner of State Revenue (Commissioner) for a HomeBuilder grant (Grant) pursuant to the provisions of the First Home Owner Grant and Other Home Owners Grants Act 2000 (Qld) (FHOG Act). On 29 June 2021 the Commissioner decided (Decision)to refuse the payment of the Grant. The Decision was confirmed in an internal review on 16 September 2021. [3] Alexander has made an Application pursuant to s59 of FHOG Act to the Tribunal for an external review of the Decision. Pursuant to s60(2)(a) of the FHOG Act the Tribunal must hear and decide the review of the Decision by way of a reconsideration of the evidence that was before the Commissioner when the Decision was made unless the Tribunal considers that it is necessary in the interests of justice to allow new evidence. [4] In paragraph 7 of the Commissioner’s preliminary submissions filed in the Tribunal on 7 February 2022, the Commissioner raises the issue of specifications. See pages 7 to 23 of the Residential Building contract arrangements level 2 – between Arden and Alexander. These specifications are part of the Contract and should be admitted as part of the material relevant to this review. However, the specifications are not a central issue in this review. [5] Pursuant to s20(1) of Queensland Civil and Administrative Act 2009 (QCAT Act) the purpose of the review is to produce the correct and preferable decision. [6] The hearing of the Application was heard on 21 March 2023. Legislation, Legal Issues and First Home Grant Scheme [7] The first home grant scheme (Scheme) is a well publicised Scheme which was established between the Commonwealth and State governments to encourage and assist home ownership and to provide grants to eligible first home owners. The Scheme has been the subject of many decisions in the Tribunal. It is not necessary for me to outline all the facts and circumstances of the Scheme. In respect of the applications for Grants, it is the Commissioner’s position that all applicants must comply with all the legislative criteria of the Scheme to be entitled to a Grant. -- 2 of 7 -- 3 [8] The relevant legal issues that are central to this review are: (a) Is the Contract an “eligible home builder transaction” as outlined in s25Q of the FHOG Act? and (b) Can the Contract and the contract arrangements for the laying of the concrete foundations be construed as a “comprehensive home builder contract” as outlined in provisions of the relevant administrative direction (Administrative Direction)? [9] The legislative provisions relevant to this review are outlined: 25Q 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. Note— See also section 25R(2). (4) Only 1 home builder grant is payable for the same eligible home builder transaction. (5) In this section— relevant requirement, in relation to an eligible home builder transaction, means— (a) if the transaction is a contract for the purchase of a new home within the meaning of the home builder direction—the contract has been completed within the meaning of the home builder direction; or (b) if the transaction is a comprehensive home building contract within the meaning of the home builder direction—the foundations have been laid and the first progress payment has been paid to the builder under the contract; or (c) if the transaction is a contract for a substantial renovation within the meaning of the home builder direction—construction under the contract has commenced and at least $150,000 of the contract price has been paid to the builder under the contract. ADMINISTRATIVE DIRECTION – Australian Government HomeBuilder Grant – Queensland - 1 March 2021 – Paragraphs 1, 14 & 15 -- 3 of 7 -- 4 Eligible transactions 1. Each of the following transactions are eligible transactions for payment of the grant: a. a contract for the freehold purchase of a new 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 4 June 2020 and within 6 months of the contract commencement date; b. 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 6 months of the contract commencement date; c. 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 6 months of the contract commencement date. 14. 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. 15. Consideration means: a. for a contract for the purchase of a new home – the consideration for the purchase; b. for a contract to have a home built – the total consideration payable for the building work; or c. for a substantial renovation contract – the total consideration payable under the contract. [10] The background to the Application is set out in a letter from the Applicant’s solicitors to the Commissioner dated 30 July 2021. See pages 56 to 58 inclusive of the Commissioner’s documents (Commissioner’s Documents) filed in the Tribunal on 7 February 2022. In summary the relevant issues are: (a) The Contract specifically excludes “Power connection and fees, foundations, siteworks, Soil testing, anything else not included in Arden Vale Homes specifications” See Appendix Part E – Fixtures and Fittings (Item 22) of the Contract which is on page 118 of the Commissioner’s Documents. (b) Alexander is a concreter and he arranged for the pouring of concrete for the foundations of the Home. -- 4 of 7 -- 5 (c) Arden undertook site preparation works before the concrete was poured for the foundations. [11] The Application was rejected because the Commissioner says that Alexander has not complied with s25Q of the FHOG Act because the Contract is not an eligible home builder transaction. That is, the contract arrangements for the concrete pour for the foundations for the Home are separate to the contract arrangements with Arden. The Commissioner says that the separate contract arrangements does not satisfy the definition of “a comprehensive home building contract” as set out in the provisions of the Administrative Direction. [12] The Commissioner says that a comprehensive home building contract means that the builder must undertake all the work with his subcontractors to build the Home from the start of building work until the home is ready for occupation. That is no other work can be undertaken on the Home in separate contract arrangements. [13] On page 7 of the Contract (page 118 of Commissioner’s Documents) filed with the Application on 12 November 2021, the siteworks, engineer’s soil test and other items are to be undertaken by the owner (Alexander). Arden in fact did some of the preparatory work on site, but the pouring of the concrete for the foundations was undertaken by Alexander’s concrete contractor under the supervision of Arden. This is accepted by both parties. [14] In the letter from Alexander’s lawyer dated 30 July 2021 and in submissions filed in the Tribunal on 16 February 2022 the following issues were highlighted: (a) Arden was required to obtain all necessary approvals, engineering reports, site plan, floor plan and elevations. (b) In the specifications provided by Arden, Arden was responsible for power connection, drawings, Council approvals/fees and water connection fees. (c) Site access was controlled by Arden. (d) The foundations were poured in April 2021 but prior to that date and going back to December 2020 a significant amount of preparatory work was undertaken by Arden before the concrete pour. This included termite mitigation work and construction of underground plumbing. (e) Arden engaged a certifier to review and certify all work, including the foundations. (f) Alexander was a concreter and in a favourable position to organise the concrete work. This is secondary to the overall work. Alexander was effectively a subcontractor for Arden. (g) A site supervisor for Arden was present for all work undertaken on site. This includes the pouring of the concrete for the foundations. (h) The example on the Treasury website regarding existing foundations is different and can be distinguished from the facts and circumstances of these proceedings. [15] The concrete work was arranged and paid for by Alexander. This work was undertaken by Glenora Concreting Pty Ltd (Glenore Concreting) around April 2021 and was paid the sum of $15,544.40 by Alexander or his financier. See pages 76 to 78 (inclusive) of the Commissioner’s Documents. -- 5 of 7 -- 6 [16] Alexander also raises the issue that he had qualified for a Regional Home Building Grant (RHBB grant) of $5,000. Alexander says the conditions applicable the RHBB grant are identical to the conditions that apply to the eligibility for a HomeBuilder Grant. [17] In response to this issue raised, the Commissioner says that the eligibility criteria for the RHBB are different to the eligibility criteria for grants under the FHOG Act. Further the RHBB grant for Alexander was approved and paid to him under owner builder arrangements. Alexander is not an owner builder in these proceedings. Notwithstanding the issue of eligibility for the RHBB grant, the way Alexander’s application for a RHBB grant was dealt with by the Commissioner is not relevant to the determination of the Application in these proceedings. [18] It is not clear to me what works were undertaken by Arden and/or Alexander regarding the laying of the concrete by Glenora Concreting. However, it is accepted by all parties that there were no subcontract arrangements between Glenora Concreting and Arden. See paragraph 9 of the letter from Alexander’s lawyer to the Office of State Revenue dated 30 July 2021. [19] I agree with the submissions of the Commissioner that I have no discretion regarding the assessments of applications for grants under the provisions of the FHOG Act. That is for an application to be successful there must be full compliance with the legislation. [20] Therefore, are the contract arrangements between Alexander and Arden whereby Arden takes responsibility for the construction of the Home on the Property an “eligible transaction” and a “comprehensive home building contract” pursuant to the FHOG Act and its subordinate legislation? [21] The facts and circumstances of this matter are very similar to the facts and circumstances in the matter of Taske v Commissioner for State Revenue [2022] QCAT 416 (Taske 1). In Taske 1 the applicant arranged a separate contract for the waterproofing of certain wet areas in the home. The builder in Taske 1 was building the home under very similar contract arrangements to those in these proceedings. [22] In Taske 1 the presiding Member found that the builder was responsible for the construction of the home from the start to the time when the house was ready for occupation, arranged for all approvals/certifications for the home and was responsible for site access. The presiding member also found that the builder was responsible for the works pursuant to the provisions of the Queensland Building and Construction Act 1991 (QBCC Act) and other relevant legislation. See paragraphs 36 to 38 (inclusive) of Taske 1. In Taske 1 the presiding Member found that the two contracts could be construed as being a “comprehensive home building contract”. See paragraph 39 of Taske 1. [23] The Commissioner appealed against the decision in Taske 1. On 29 September Judicial Member Forest handed down his decision which is cited as Commissioner of State Revenue v Taske [2023] QCATA 121 (Taske 2) where he determined the following: (a) The contract arrangements should not be construed as a comprehensive home building contract. Therefore, the contract arrangements are not an eligible transaction pursuant to the provisions of the FHOG Act and its subordinate legislation. See paragraphs 31 and 32 of Taske 2. -- 6 of 7 -- 7 (b) The provisions of the QBCC Act and other relevant legislation do not make a builder responsible for any works excluded from the building contract. See paragraphs 25 to 29 of Taske 2. (c) Responsibility for certification of any works falls on the relevant certifier, not the builder. See paragraph 30 of Taske 2. [24] I must follow the precedent and interpretation of the provisions of the FHOG Act, and its subordinate legislation as outlined in Taske 2. Accordingly, I must confirm the decision of the Commissioner to reject the Application. [25] This is a very unfortunate outcome for Alexander. It is my view that at all times Alexander thought that he was doing the right thing and that he was complying with the eligibility criteria of the scheme as published and administered by the Commonwealth and State Governments. -- 7 of 7 --