Commissioner of State Revenue v Lewis & Anor [2022] QCATA 172

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Commissioner of State Revenue v Lewis & Anor [2022] QCATA 172 PARTIES: COMMISSIONER OF STATE REVENUE (applicant/appellant) v SARAH JANE LEWIS SCOTT CHRISTOPHER LEWIS (respondents) APPLICATION NO/S: APL289-22 ORIGINATING APPLICATION NO/S: GAR424-21 MATTER TYPE: Appeals DELIVERED ON: 14 November 2022 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Brown ORDERS: 1. The application to stay a decision is refused. Directions 5, 6, 7, 8 and 9 of the Appeal Tribunal directions dated 30 September 2022 are confirmed. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADSMINISTRATIVE TRIBUNAL - APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – WHEN REFUSED - whether applicant able to demonstrate a proper basis for a stay – whether considerations favour granting stay – whether risk of appeal being rendered nugatory if stay not granted – whether risk of applicant not being able to recover any amount from respondents should appeal be successful – where applicant failed to demonstrate proper basis for stay Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 145(2). Day v Humphrey [2017] QCA 104. Hessey-Tenny & Anor v Jones [2018] QCATA 131 Lewis v Commissioner for State Revenue [2022] QCAT 109. -- 1 of 4 -- 2 Stone Family Trust t/as Stone Consulting v Alison Rogers [2019] QCATA 7. 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) Applicant: Self represented Respondent: Self represented REASONS FOR DECISION [1] On 14 November 2022 I refused an application to stay the decision of the Tribunal under appeal. These are my reasons. [2] The respondents sought review of a decision by the applicant that they were not entitled to the Commonwealth HomeBuilder Grant (the grant). The Tribunal set aside the applicant’s decision and substituted a decision that the respondents application to the grant be allowed (the decision).1 [3] The applicant has appealed the decision. The appeal [4] The applicant relies upon a single ground of appeal. The applicant says that the Tribunal misconstrued s 14 of the Administrative Direction – Australian Government HomeBuilder Grant – Queensland (the Direction) in finding that the reference to ‘builder’ in the definition of ‘Comprehensive Home Building Contract’ is not restricted to a builder licensed under the Queensland Building and Construction Commission Act 1991 (Qld). [5] By way of background, the respondents entered into a contract with Freedom Homes Queensland Pty Ltd (Freedom Homes) for the construction of a residential dwelling. It was not contentious in the proceeding below that, at the time the contract was entered into, Freedom Homes did not hold a licence issued by the Queensland Building and Construction Commission to undertake building work. The building contract identified a QBCC building licence number. That licence was held by Mr Darrin Wilson. [6] The Tribunal found that Freedom Homes was not required to be licensed in order for the respondents to qualify for the grant. The Tribunal held: There is no factual dispute that Freedom Homes is a builder, meaning that it is competent to carry out the task of building a new home. Because it is an incorporated entity, it does so through its named nominee and licensed builder, Mr Wilson. The obligations imposed on Freedom Homes for the construction are governed by the written contract entered into between it and Mr and Mrs Lewis. There is no dispute that Freedom Homes discharged all of its obligations under the building contract and also in terms of clause 14 of the Direction “to 1 Lewis v Commissioner for State Revenue [2022] QCAT 109. -- 2 of 4 -- 3 build a home from the start of the building work to the point where it was ready for occupation”.2 [7] The Tribunal found that clause 14 of the Direction was not ambiguous and did not require the builder who undertook to build a home to be licensed. Clause 6 of the Direction required that construction must be undertaken by a registered or licensed building service ‘contractor’ who is named as a builder on the building licence or permit. [8] The Tribunal was satisfied that, on a proper construction of the Direction, a licensed builder was required to undertake the building work and that the contract must be with a builder, but these did not necessarily have to be one and the same. The Tribunal found that this was consistent with the operation of the QBCC Act, by the use of nominees, and the oversight of building works by the QBCC.3 [9] In this appeal the applicant says that the learned member erred in his construction of the provisions of the Direction. It is sufficient to observe that the construction of the provisions pressed by the applicant required the builder entering into a building contract to be the holder of a licence of the appropriate class issued by the QBCC in order for an applicant to be entitled to the grant. Consideration [10] The Appeal Tribunal may make an order staying the operation of the decision being appealed against until the appeal is finally decided.4 [11] In Stone Family Trust t/as Stone Consulting v Alison Rogers5 the Appeal Tribunal stated: A party seeking the stay order must satisfy the Tribunal that the discretion to grant a stay ought to be exercised in the circumstances of the matter. There must be sound reasons for suspending the rights that a successful party otherwise has to the fruits of the judgment obtained in its favour. The balance of convenience in the circumstances must be considered. If success on appeal would be rendered nugatory were a stay not granted, that must be balanced against the expectation of the successful party to the fruits of the judgment. In respect of a money order, a stay may be granted in circumstances where there is evidence that if the appeal succeeds, the respondent would not be able to repay the money. (footnotes omitted) [12] In order for the Appeal Tribunal to grant a stay the applicant must establish the following: (a) The applicant has a good arguable case in the appeal; (b) The applicant will be disadvantaged if a stay is not granted; (c) There is some compelling disadvantage to the respondents if a stay is granted which outweighs the disadvantage suffered by applicant if a stay is not granted.6 2 Ibid at [14]. 3 Ibid at [17]. 4 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 145(2). 5 [2019] QCATA 7. 6 Day v Humphrey [2017] QCA 104 (26 May 2017). -- 3 of 4 -- 4 [13] Where an applicant’s case is at least arguable the focus of consideration necessarily shifts to questions of competing advantage and disadvantage if the stay be granted or not.7 [14] Considerations (b) and (c) above may be collectively referred to as balance of convenience considerations. a. Arguable case [15] The appeal is confined to a relatively narrow question of construction. I proceed on the basis that the applicant has at least an arguable case on appeal. b. Disadvantage to the applicant [16] The applicant says that unless the stay is granted the appeal may be rendered nugatory. It is difficult to apprehend how this may be so. The applicant’s submissions do not elaborate. I do not accept this submission. There is nothing to suggest that the appeal will be rendered futile if the stay is not granted. The applicant says that if it successful in the appeal it may encounter difficulty in securing recovery of monies paid to the respondents. The applicant offers nothing more than this bare assertion of possible prejudice. I do not consider that the applicant has established that it will be sufficiently disadvantaged if a stay is not granted such that the discretion should be exercised in the applicant’s favour. c. Disadvantage to the respondents [17] The applicant’s submissions do not address this consideration other than to concede, quite properly, that the respondents are entitled to the fruits of their judgment. This factor does not tell in favour of granting the stay. Conclusion [18] The applicant has failed to establish a proper basis upon which a stay of the decision should be granted. The application to stay a decision is refused. I will make directions to progress the appeal. 7 Hessey-Tenny & Anor v Jones [2018] QCATA 131 (20 September 2018), Daubney J, President. -- 4 of 4 --