Brady & Anor v Commissioner of State Revenue [2020] QCAT 521

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Brady & Anor v Commissioner of State Revenue [2020] QCAT 521 PARTIES: MICAH NAHUM BRADY (first applicant) TINA CHING-YU HSUEH (second applicant) v COMMISSIONER OF STATE REVENUE (respondent) APPLICATION NO/S: GAR0327-19 MATTER TYPE: General administrative review matters DELIVERED ON: 17 December 2020 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Kent ORDERS: The Commissioner of State Revenue’s decision to disallow the objection to her decision to refuse the application for the First Home Owner Grant is confirmed. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – revenue and taxation – whether ‘eligible transaction’ for first home owner grant – whether property previously sold as place of residence and therefore not a ‘new home’ – where previous contract of sale for vacant land – where property previously transferred as dwelling and attached dwelling notwithstanding previous contract of sale – where property thus sold as place of residence – where Parliament’s policy intent was achieved when home first bought and transferred First Home Owner Grant and Other Home Owner Grants Act 2000 (Qld), s 5, s 6, s 10 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 23 Betts & Anor v Commissioner of State Revenue [2013] QCAT 283 -- 1 of 6 -- 2 Darby v Commissioner of State Revenue [2016] QCAT 193 Gonzalez & Anor v Commissioner of State Revenue [2015] QCAT 65 Harley v Department of Justice and Attorney-General [2012] QCAT 620 Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58 McTackett v Chief Commissioner of State Revenue [2003] NSWADT 154 Montgomery v Continental Bags (NZ) Ltd [1972] NZLR 884 Nairn v Chief Commissioner of State Revenue [2011] NSWADT 41 North Shore Gas Co Ltd v Commissioner of Stamp Duties (NSW) (1940) 63 CLR 52 Re Gough [1950] QWN 9 TEC Desert Pty Ltd v Commissioner of State Revenue (WA) (2010) 241 CLR 576 Chee v Commissioner of State Revenue [2020] QCAT 231 West v Read (1913) 13 SR(NSW) 575 APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). REASONS FOR DECISION What is this Application about? [1] This application deals with eligibility for a new home buyer grant under the First Home Owner Grant Act 2000 (Qld) (the Act) . Legislative History [2] The legislation was the named First Home Owner Grant Act 2000 (Qld) at the time of the relevant application. The current version of the legislation is entitled the First Home Owner Grant and Other Home Owner Grants Act 2000 (Qld). Pursuant to section 2 of the latter title the Act commenced on 1 July 2000 so all dates relevant to these proceedings are within the operation of this act. The submissions of both parties have referred to the former title. The sections referred to maintain the same numbering and wording in the current version of the Act and therefore the submission have been considered as relevant to the operative legislation. Path to the Tribunal [3] The applicants purchased a home and applied for a grant under the Act. Their application was refused. The applicants then asked the Commissioner of State Revenue (the Commissioner) to review the decision. A decision on this review was made on 20 June 2019 and the applicants were advised on that date that their -- 2 of 6 -- 3 application for review had been unsuccessful and their application for a grant remained refused. [4] The Commissioner’s decision to refuse them the First Home Owner Grant (a decision that remained the same after an internal review) was based on the view that their property was previously sold as a place of residence and therefore not a ‘new home’.1 [5] On 16 August 2019 the applicants applied to the Tribunal to review the Commissioner’s decision. What are the Tribunal’s powers? [6] The Tribunal may confirm, amend or set aside the Commissioner’s decision and substitute a new decision.2 The Tribunal’s role is to produce the ‘correct and preferable’ decision3 by way of a fresh hearing on the merits.4 It is not appropriate nor is it within the jurisdiction of the Tribunal to answer hypothetical question or give a general opinion on how the law may operate in other situations. Disputed Issues [7] The applicants submitted to the Tribunal that the vendor of their property, Achievement Homes Pty Ltd (hereafter known as Achievement) initially bought the property as vacant land. The relevant details of that transaction are that on 29 June 2018 Achievement entered a contract with the Springfield Land Corporation (No. 2) Pty Ltd (hereafter known as Springfield). On 18 September 2018 a dwelling was built on the land. The applicants submit this was not used as a place of residence, that it was used as a display home only and that no one lived there. On 22 November 2018 the applicants entered a contract with Achievement to buy the home. The contract stated that the present use of the land was “residential” and the contract was conditional upon the prior sale between Achievement and Springfield. On 30 November 2018 settlement occurred for the contract between Achievement and Springfield. Achievement became the registered owner of the home on 7 December 2018. Settlement occurred between the applicants and Achievement on 17 December 2018. On 8 January 2019 the applicants became registered owners of the home. [8] The applicants submit that the Commissioner should refer to the contract between Springfield and Achievement dated 29 June 2018. It is their view that the correct interpretation of the contract between Achievement and Springfield is that on 30 November 2018 it was only vacant land that was transferred between Springfield and Achievement. It is the applicants’ submission that the first time a new dwelling was sold was when it was sold to them by entering the contract of sale on 22 November 2018. The home therefore meets the definition of a new home under section 6(2)(a) of Act and the applicants purchased a home that is an eligible transaction pursuant to section 10 of the Act. [9] The Commissioner has a different view of the transactions. She agrees that the contract of 29 June 2018 states that it was to buy vacant land. However, the Commissioner submits as of 18 September 2018 a dwelling had been built on the on 1 First Home Owner Grant Act 2000 (Qld), s 6(2)(a). 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 23(2). 3 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(1). 4 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(2). -- 3 of 6 -- 4 the land and this was the house that the applicants subsequently purchased. It was built as a display home, however it is the respondent’s submission that this irrelevant. It is the Commissioner’s submission that the home had been previously sold as a place of residence5 because at the time of settlement on 22 November 2018 there was a dwelling attached to the land and this met the definition of a home within the legislation. Was the home previously sold as a place of residence? [10] The applicants bought their home from Achievement.6 The Applicants submitted that as Achievement built the home only after entering into a previous contract to buy vacant land from Springfield Land Corporation (No. 2) Pty Ltd, 7 the property could not have ‘previously been sold as a place of residence’. [11] However, I refer to the decision of Member Hughes in Chee v Commissioner of State Revenue8 where he stated: the Tribunal has consistently held that the test of ‘sold as a place of residence’ is objective and does not depend on the acts or intentions of the parties, but the predominant character of the property.9 While the description of the transaction in the contract may be a factor in determining the nature of the transaction, it is not determinative. Registration of the instrument of transfer confers title.10 The earlier contractual description of the transaction cannot alter the substantive character of the property ultimately transferred from Springfield to Ownit – land with a dwelling. [12] Similarly to the Chee case the relevant date is not the entry date of 29 June 2019 rather it is the date of settlement of the contract between Achievement and Springfield and this is on 30 November 2020. The rights of Achievement and Springfield can be described as crystallising upon settlement.11 [13] The Transfer documents from Springfield to Achievement show current land use by the time of settlement as ‘Vacant land’.12 This is one of the pieces of evidence that the Applicants rely upon in submitting that their purchase was the first time the property was sold as a place of residence. I note the submissions of the Commissioner that have recourse to the definition of ‘home’ under the Act which is ‘a building fixed to land that may be lawfully used as a place of residence’.13 [14] I accept that the final inspection certificate dated 18 September 2018 is conclusive evidence that the building was lawfully a place of residence as of that date. So regardless of what Springfield and Achievement believed it is not a subjective test to determine the nature of the property sold. Deciding whether what was transferred was 5 First Home Owner Grant and Other Home Owner Grants Act 2000 (Qld), s 6(2)(a). 6 Contract for Houses and Residential Land dated 22 November 2018. 7 Contract for Sale of Land dated 28 June 2018 8 [2020] QCAT 231, [6]. 9 Betts & Anor v Commissioner of State Revenue [2013] QCAT 283, [20]; Gonzalez & Anor v Commissioner of State Revenue [2015] QCAT 65, [9]; Darby v Commissioner of State Revenue [2016] QCAT 193, [6]. 10 Re Gough [1950] QWN 9. 11 West v Read (1913) 13 SR(NSW) 575, 579, 582; Montgomery v Continental Bags (NZ) Ltd [1972] NZLR 884; McTackett v Chief Commissioner of State Revenue [2003] NSWADT 154, [19] – [21]; Nairn v Chief Commissioner of State Revenue [2011] NSWADT 41, [64] – [74]. 12 Property Information (Transfer) Form 24. 13 First Home Owner Grant and Other Home Owner Grants Act 2000 (Qld), s 6(1). -- 4 of 6 -- 5 a building fixed to the land that was lawfully able to be used as a place of residence is an objective test. For the purposes of the Act that means a home was transferred. [15] The inescapable conclusion on the facts is that a building that could be lawfully used as a place of residence, on and from 18 September 2018, was transferred by Springfield to Achievement. In summary at the time of settlement between Springfield and Achievement there was in fact a dwelling attached to the land and once the land has a dwelling attached it becomes part of the land owned by Springfield until it's transferred to Achievement. The property was transferred to Achievement with a dwelling and thus sold as a place of residence. I find that this transfer between Springfield and Achievement is the first time that this property was sold as a place of residence. [16] I refer again to the decision of Chee14 noting the following paragraphs: This interpretation is consistent with Parliament’s policy intent to restrict eligibility for the grant only to first home buyers who build or buy a new home and thereby boost the housing construction sector.15 Parliament achieved its policy aims to boost the construction sector (and consequential jobs) when the home was first built and transferred – before the Applicants bought it. This means that the home was previously sold as a place of residence before the Applicants bought it. For completeness, the Tribunal notes that it is not relevant that the building was used as a display home. The home was built to be lived in and was displayed for that purpose: Whether the home was in fact lived in or resided in – or displayed – does not change its essential character. Simply because the first buyer intends – at least initially – to use it for display does not derogate from its fundamental character as a dwelling. Its predominant character is that of a residence… Regardless of whether the property was used or merely displayed as a place of residence, it was still built for that purpose and its essential character remains as a place of residence.16 [17] I adopt the reasoning of Chee and based on the legislation and evidence before me I find that the contract between the applicants and Achievement was not for the purchase of a ‘new home’17 as it was not the first time that the property has been sold as a place of residence. It is the second contract for sale of a place of residence at the property. It follows that the transfer between Achievement and the applicants is not an ‘eligible transaction’.18 The applicants are not entitled to receive the grant as they are not first home buyers within the meaning of the Act. The only people who are eligible for the grant must be persons who satisfy the eligibility criteria such as age and citizenship (not in issue here) and have completed an ‘eligible transaction’.19 An ‘eligible transaction’ is a contract made for the purchase of a ‘new home’.20 A 14 [2020] QCAT 231, [9] – [10]. 15 Fiscal Repair Amendment Bill 2012 Explanatory Notes 2, 10; Minister’s Second Reading Speech, Queensland Hansard 11 September 2012, 1823. 16 Darby v Commissioner of State Revenue [2016] QCAT 193, [7], [8]. 17 First Home Owner Grant and Other Home Owner Grants Act 2000 (Qld), s 6(2)(a). 18 First Home Owner Grant and Other Home Owner Grants Act 2000 (Qld), s 5(1)(a). 19 First Home Owner Grant and Other Home Owner Grants Act 2000 (Qld), s 10. 20 First Home Owner Grant and Other Home Owner Grants Act 2000 (Qld), s 5(1)(a). -- 5 of 6 -- 6 ‘new home’ is a home that has not been previously occupied or sold as a place of residence21The property as previously been sold as a place of residence. Decision [18] The Commissioner’s decision to disallow the objection to her decision to refuse the application for the First Home Owner Grant is confirmed. 21 First Home Owner Grant and Other Home Owner Grants Act 2000 (Qld), s 6(2)(a). -- 6 of 6 --