Chee v Commissioner of State Revenue [2020] QCAT 231

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Chee v Commissioner of State Revenue [2020] QCAT 231 PARTIES: JOSEPH CHEE MARGARET CHEE MEI LI CHEE MEI YEN CHEE (applicant) v COMMISSIONER OF STATE REVENUE (respondent) APPLICATION NO/S: GAR088-19 MATTER TYPE: General administrative review matters DELIVERED ON: 22 June 2020 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Hughes 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 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 4 -- 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 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] The Commissioner of State Revenue disallowed the Applicants’ objection to her decision to refuse them the First Home Owner Grant because their property was previously sold as a place of residence and therefore not a ‘new home’.1 [2] The applicants have applied to the Tribunal to review the Commissioner’s decision. They submitted that because the seller previously bought the property only as vacant land and then built the home as a display home after entering into that contract of sale, it was not “previously sold as a place of residence”.2 Background [3] The Tribunal may confirm, amend or set aside the Commissioner’s decision and substitute a new decision.3 The Tribunal’s role is to produce the ‘correct and 1 Decision dated 19 February 2019. 2 First Home Owner Grant Act 2000 (Qld), s 6(2)(a). 3 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 23(2). -- 2 of 4 -- 3 preferable’ decision4 by way of a fresh hearing on the merits.5 This means that the applicants do not need to prove that the Commissioner’s decision is incorrect.6 [4] Having satisfied eligibility criteria such as age and citizenship, the applicants are entitled to the grant if they completed an ‘eligible transaction’.7 An ‘eligible transaction’ is a contract made for the purchase of a ‘new home’.8 A ‘new home’ is a home that has not been previously occupied or sold as a place of residence.9 Was the home previously sold as a place of residence? [5] The Applicants bought their home from Ownit Homes Pty Ltd.10 The Applicants submitted that because Ownit built the home11 only after entering into a previous contract to buy vacant land from Springfield Land Corporation (No. 2) Pty Ltd, 12 the property could not have ‘previously been sold as a place of residence’. [6] However, 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.13 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.14 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. [7] Although the previous contract was entered into on 9 September 2013, the Transfer was not stamped for lodgement with the Land Titles Office until 18 June 201415 and settlement did not occur until 15 December 2014.16 The rights of Ownit and Springfield did not crystallise until settlement.17 The Transfer documents show current land use by the time of settlement as ‘Dwelling’18 – not ‘Vacant Land’. [8] This means that notwithstanding the previous contract of sale, the documents giving effect to that sale recorded the current use of the property being transferred as a 4 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(1). 5 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(2). 6 Harley v Department of Justice and Attorney-General [2012] QCAT 620, [8], citing with approval Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58, [9]. 7 First Home Owner Grant Act 2000 (Qld), s 10. 8 First Home Owner Grant Act 2000 (Qld), s 5(1)(a). 9 First Home Owner Grant Act 2000 (Qld), s 6(2). 10 Contract for Houses and Residential Land dated 24 November 2017. 11 Witness Statement of Scott Ganim dated 1 July 2019. 12 Contract for Sale of House and Land dated 9 September 2013. 13 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]. 14 Re Gough [1950] QWN 9. 15 Transfer dated 17 June 2014. 16 Witness Statement of Scott Ganim dated 1 July 2019, 8.3. 17 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] to [21]; Nairn v Chief Commissioner of State Revenue [2011] NSWADT 41, [64] to [74]. 18 Property Information (Transfer) Form 24. -- 3 of 4 -- 4 dwelling. That is, by the time of settlement the use of the property being transferred from Springfield to Ownit was for a dwelling – and in fact had a dwelling attached. Once attached to the land, the dwelling became part of the land owned by Springfield until transferred to Ownit.19 The property was then transferred to Ownit as land with a dwelling – and thus sold as a place of residence. [9] 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.20 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. [10] 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.21 [11] The contract between the Applicants and Ownit was therefore not for the purchase of a ‘new home’22 and was therefore not an ‘eligible transaction’.23 [12] The Applicants are not entitled to the First Home Owner Grant. What is the ‘correct and preferable’ decision? [13] The ‘correct and preferable’ decision is to confirm the Commissioner’s decision to disallow the objection to her decision to refuse the application for the First Home Owner Grant. 19 TEC Desert Pty Ltd v Commissioner of State Revenue (WA) (2010) 241 CLR 576, [23]; North Shore Gas Co Ltd v Commissioner of Stamp Duties (NSW) (1940) 63 CLR 52, 68. 20 Fiscal Repair Amendment Bill 2012 Explanatory Notes 2, 10; Minister’s Second Reading Speech, Queensland Hansard 11 September 2012, 1823. 21 Darby v Commissioner of State Revenue [2016] QCAT 193, [7], [8]. 22 First Home Owner Grant Act 2000 (Qld), s 6(2)(a). 23 First Home Owner Grant Act 2000 (Qld), s 5(1)(a). -- 4 of 4 --