D & V Hambling Pty Ltd as Trustee for D & V Hambling Custodian Deed v Commissioner of State Revenue [2017] QCAT 415

CITATION: D & V Hambling Pty Ltd as Trustee for D & V Hambling Custodian Deed v Commissioner of State Revenue [2017] QCAT 415 PARTIES: D & V Hambling Pty Ltd as trustee for D & V Hambling Custodian Deed (Applicant) v Commissioner of State Revenue (Respondent) APPLICATION NUMBER: GAR064-16 MATTER TYPE: General administrative review matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Allen DELIVERED ON: 24 November 2017 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of the Commissioner of State Revenue is confirmed. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – review of decision by the Commissioner of State Revenue under the Building Boost Grant Act 2011 (Qld) – whether building work under the contract started before 1 May 2013 – where contract subject to deed of variation – where building work performed prior to deed of variation – where building work performed prior to building approval Building Boost Grant Act 2011 (Qld), s 12, s 13, s 14, s 96 , s 97 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 17, s 18, s 19, s 20, s 21, s 22, s 23, s 24 Sustainable Development Act 2009 (Qld), s 7, s 340 O’Neill v Commissioner of State Revenue -- 1 of 9 -- 2 [2015] QCATA 108 APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION [1] D & V Hambling Pty Ltd made an application dated 26 August 2012 for the Building Boost Grant in respect of a house to be built off the plan in Chinchilla.1 The application was refused by the Commissioner of State Revenue on the basis that the contract did not comply with the requirements of the Building Boost Grant Act 2011 (Qld) (BBG Act) in regard to the date that the building work must commence under the contract. D & V Hambling has now applied to the Tribunal for a review of that decision. [2] The Tribunal when acting in its review jurisdiction stands in the shoes of the original decision maker to hear and decide a review in accordance with the QCAT Act and the enabling Act, the BBG Act.2 The Tribunal is required to hear and decide the review by way of a reconsideration of the evidence before the Commissioner, when the decision was made, unless the Tribunal considers it necessary in the interests of justice to allow new evidence and under the same law that applied to the making of the original decision.3 I note in this case that the Tribunal has made extensive directions for the filing of further material which will be considered in the making of the decision. [3] The purpose of the review is to make the correct and preferable decision.4 The Tribunal may confirm or amend the decision; set aside the decision and substitute its own decision or set aside the decision and return it to the decision-maker for reconsideration.5 [4] The Commissioner’s role is to assist the Tribunal to make the decision.6 This includes by the provision of a statement of reasons for the decision and a copy of any document or thing that may be relevant to the Tribunal’s review of the decision. [5] An applicant for a building boost grant is entitled to be paid the grant if the transaction for which the grant is sought is an eligible transaction and has been completed.7 The BBG Act defines various types of eligible 1 S21 Documents, p 72 to 86. 2 QCAT Act, s 19. 3 BBG Act, s 97(2). 4 Ibid, s 20. 5 Ibid, s 24. 6 QCAT Act, s 21. 7 BBG Act, s 12. -- 2 of 9 -- 3 transactions, one of which is an eligible home purchase contract.8 A home purchase contract is defined in the Dictionary to the BBG Act as: …a contract entered into by a person to purchase a home and a relevant interest in the land on which the house is built, or is expected to be built, on or before the completion of the contract. [6] An eligible home purchase contract is defined as follows in s 14 of the BBG Act: a) it is for the purchase of a new home that is, or is to be, built on land in the State; and b) the transaction commencement day is on or after 1 August 2011 and before 1 May 2012; and c) either- i) it is for the acquisition of a relevant interest in the land on which the home has been built; or ii) it is for the acquisition of a relevant interest in the land on which the home is to be built, before completion of the contract, by or for the seller of the home and at the expense of the seller; d) it has been entered into by each person who on completion of the contract will have a relevant interest in the land; and e) the total of the following is less than $600000- i) The unencumbered value of the home; ii) The unencumbered value of the relevant interest in the residential land at the transaction commencement day for the contract; and f) For a contract to purchase a new home on a proposed lot on an unregistered plan of subdivision of land- i) The contract provides that the building work must start before 1 May 2013 and be completed before 1 May 2015; or ii) If subparagraph (i) does not apply, the building work under the contract is- A) Started before 1 May 2013; and B) Completed before 1 May 2015, or within a longer period allowed by the Commissioner. 8 BBG Act. -- 3 of 9 -- 4 [7] The transaction commencement day for a home purchase contract is the date the contract is made.9 [8] D & V Hambling filed a copy of the contract for sale10 with the application for the grant. The contract is dated 30 April 2012 with a purchase price of $524,768.00. There are no dates set out in the contract in regard to when building work must start or be completed. The contract is subject to the seller obtaining all necessary approvals for the construction of the dwelling before the approval date in accordance with clause 20.1. The approval date in the contract means three months after the later of notice of plan registration or the contract becoming unconditional. The settlement date is stated in clause 2.1(a) of the contract to be the later of one month after the substantial completion date (eight months after the plan creating a separate instrument of title has registered) relating to the dwelling or the date which is 9 calendar months after the date of notice from the seller to the buyer that the plan creating a separate instrument of title has registered with the department. Dwelling is defined in the contract as the residential house to be built on the land. The seller must by the substantial completion date substantially complete construction of the dwelling in accordance with clause 20.4 of the contract. The seller will cause the Dwelling to be built substantially in accordance with the building specifications (attached to the contract as Annexure A), in a good and workmanlike manner and in accordance with all applicable laws, regulations and standards,11 in accordance with clause 20.5 of the Contract. The building specifications comprise a schedule of inclusions and standard specifications a floor plan and site plan. [9] It is clear from the contract that certain of the requirements of s 14 of the BBG Act have been met. The contract is for the purchase of a new home to be built on land in the State, so s 14(a) is satisfied. The transaction commencement day is 30 April 2012, so s 14(b) is satisfied. The contract is for a relevant interest in land on which a house is to be built, so s 14(c)(ii) is satisfied. The contract purchase price is $524,768.00, so s 14(e) is satisfied. [10] The application required that certain supporting documentation be provided apart from the contract, that is a copy of the registration confirmation statement or current title search and a copy of the final inspection certificate. These were not provided and a request was made by the Commissioner for them to be provided.12 9 BBG Act, s 13. 10 S21 Documents, p 87 to 119. 11 S21 Documents, p 100. 12 S21 Documents, p 71. -- 4 of 9 -- 5 [11] The current title search and final inspection certificate were provided by letter of 3 April 2015.13 The current title search14 shows D & Hambling Pty Ltd was registered as owner on 26 June 2014, so s 14(d) is satisfied. [12] As the contract does not specify when the building work must start and be completed then s 14(f)(ii) applies and the transaction will be an eligible transaction if the building work under the contract is started before 1 May 2013 and completed before 1 May 2015. As mentioned the title search shows that the land was registered in D & V Hambling’s name on 26 June 2014 and the final inspection certificate15 is dated 27 May 2014 these confirm that the building work was completed before 1 May 2015. [13] The final inspection certificate discloses the following information about the inspections of the various building stages: a) Foundation and Excavation stage 4 December 2013; b) Slab stage 9 December 2013; c) Frame Stage 28 January 2014; and d) Final stage 8 May 2014. [14] The Commissioner noting that the first inspection occurred on 4 December 2013 made a decision to refuse the application on 22 April 2015, on the basis that s 14(f)(ii)(A) of the BBG Act was not satisfied as the building work had not commenced before 1 May 2013. [15] D & V Hambling objected to the decision by letter and attachments dated 18 September 2015.16 The grounds of the objection included that: a) The start date for building works was 24 January 2013 when earthworks (excavation and filing) operations started on the lot. Which was said to be evidenced by documentation attached to an email dated 11 October 2013. That is the Stage 4 Construction program which shows that the earthworks (called ‘site cut’) for lot 37 was completed on 24 January 2013. b) It is noted that there is no definition of building work in the BBG Act and it is sought to rely on definitions of ‘Building Work’ in the Building Act 1975 (Qld), which include excavation and filling as building work.17 ‘Building Work’ is also said to be defined in the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act). In particular, work consisting of Earthmoving and excavating is 13 Ibid, p 59. 14 Ibid, p 60. 15 Ibid, p 61. 16 Ibid, p 35. 17 Building Act 1975 (Qld), s 5. -- 5 of 9 -- 6 building work – with reference to s10 and 12 and part 2 interpretation and s32 of Schedule 1AA. c) Following the completion of the earthworks (site cut) on lot 37, subsequent building work was delayed pending the resolution of a revised house design and Council approval for same. Council had introduced a Temporary Local Planning Instrument (TLPI), related to homes exceeding three bedrooms and three bathrooms which came into force just before the building application was filed. Council advised that the building application for the original house design of 4 bedrooms and 4 bathrooms did not comply with the TLPI. d) A revised design to comply with the TLPI was prepared and submitted to Council by the Builder and building permit was issued on 8 November 2013. e) The building work then resumed with the final stage inspection on 27 May 2014. [16] All of the requirements of s 14 have been met apart from the requirement that the building work under the contract started before 1 May 2013. The issues which the Tribunal must determine are what is meant by the phrase “building work under the contract” in s 14(f)(ii) and when did the building work under this contract start. [17] D & V Hambling have relied on various statutory definitions of building work and the Commissioner, while initially using an amalgam of a dictionary definition, later submitted that the definition of building work should be that under the contract. The Commissioner makes the point that it is the building work under the contract which is important and not building work generally. While the definitions of building work provided by D & V Hambling are by their nature general. [18] I agree that it is the building work under the contract which it is important to consider and so regard must be had to the contract itself. The definition of building work used in the contract is any works carried out on the Land in the nature of the construction, alteration, renovation or repair of a dwelling or other building; fence’ retaining wall; driveway. External sign or hoarding; external flood lights; or external fittings. Clause 9.1 of the contract requires the buyer to obtain the seller’s approval before commencing any building works. [19] The contract requires the seller to construct a dwelling on the land in accordance with the building specifications which form Annexure A to the contract, in accordance with clause 20 of the Contract. The building specifications in the heading preliminaries and site works include the -- 6 of 9 -- 7 preparation of the site including retaining walls (if required) and footings and slab constructed to engineers standards.18 [20] Further evidence in regard to the building work under the contract is contained in the development permit for building works on lot 37 which was issued on 8 November 2012.19 Item 9 of the Development permit deals with inspections and requires that: The builder for the building work must is given to Council before all or any of the stages of construction is complete. Building work is not to proceed beyond any stage until the building certifier has issued a Form 16- Inspection certificate”.20 The Development permit states that a notice of inspection must be given at each of the following stages of the building work. The first stage was the Foundation/excavation stage and the first inspection was required for the set out of the building work and site earthworks as an aspect of that stage.21 [21] The Commissioner sought to rely on the decision in O’Neill v Commissioner of State Revenue22 in regard to what would constitute the laying of foundations and that general clearing of the land would not form part of that work. D & V Hambling has rightly responded that the decision in that case was in regard to an owner-builder application and the legislative requirements are different. For an owner-builder arrangement the transaction commencement day is the date the laying of the foundations starts.23 Whereas here the important date is the date the building work under the contract commenced. [22] While the contract was signed on 30 April 2012 the building of the house was significantly delayed. This was because the original plan included a house with four bedrooms and four bathrooms and as mentioned above this design did not comply with the Council’s requirements and had to be revised. [23] D & V Hambling filed a deed of variation in respect of the contract with an effective date of 1 April 2013. The deed altered the contract price, made the contract conditional upon the obtaining of finance and deleted the building specifications annexed to the contract and inserted the building specifications contained in the schedule to the deed in lieu thereof. [24] The Commissioner submits that the variations relate directly to the building work. 18 S21 Documents, p 116. 19 Ibid, p 21. 20 Ibid, p 23. 21 Ibid, p 24. 22 [2015] QCATA 108 [17]; [19]. 23 BBG Act, s 13 and s 17(b). -- 7 of 9 -- 8 [25] I am satisfied The “building work under the contract” for the purposes of s 14(f) was then from the date of the deed of variation the building work set out in the specifications attached to the deed of variation. A development permit was obtained in respect of the building work specified in the deed of variation on 8 November 2013. [26] The next question is when did that building work start? [27] D & V Hambling had submitted that the building work under the contract commenced on 24 January 2013 when the site cut for the house took place. The evidence for this is a spreadsheet, which shows completed building work for various lots in the estate with one entry relating to lot 37 being a site cut on 24 January 2013. Mr Goodwin, the building manager for the estate, in an email dated 27 June 2016 in regard to the building work stated that: …when the land was received from the developer to build all lots needed to be individually surveyed to plot the property boundaries and set for the building footprint. Lot 37 as per all other sites required site cutting to suit the design of the dwelling which was achieved as the first stage of the building process after the land was released from the developer. [28] In a further email dated 7 August 2016 he stated that the attached program does represent a true schedule of the site cut date as being completed on that date. [29] D & V Hambling set out in their submissions that the work performed on 24 January 2013 would have included the labour of the surveyor setting out the building’s position and levels on the site and the labour exerted by the operator of the earthmoving drott, excavator or truck contribute to the construction of the building. I note that the source of this information is not stated and there is no suggestion that a representative of D & V Hambling was on site at the time the work was said to have been done. [30] D & V Hambling state that the Commissioner has previously accepted that the site cut work was done on the site on 24 January 2013, while the Commissioner did not consider that this was building work. The Tribunal though is reconsidering the evidence including the new evidence provided and is not bound by any previous finding of the Commissioner. [31] There are emails between D & V Hambling and the Seller form December 2012 with one on 24 January 2013 which show that the site plan which was ultimately used in the specifications to the deed of variation had been agreed by 24 January 2013. That site plan was not part of the building work under the contract as at 24 January 2013 in the deed pof variation was which show thatThe Commissioner has submitted that the Seller was required to obtain all necessary approvals for the construction of the dwelling in accordance with clause 20.1 of the Contract and if the approvals were not obtained by the approval date the contract could be terminated in accordance with clause 20.3 of the Contract. Further that, -- 8 of 9 -- 9 “Development”, defined as carrying out building work,24 may commence when a development permit for the development takes place.25 [32] I note that the site plan for the dwelling to be constructed in accordance with the deed of variation is the same as the site plan which is set out in the emails between D & V Hambling and the Seller on 24 January 2013. Therefore, it is possible that a site cut could have been performed on lot 37 in respect of the house that was ultimately built on the land. [33] The only evidence provided by D & V Hambling that any building work was undertaken prior to 1 May 2013 relates to the work that was said to have taken place on 24 January 2013. It is not enough that building work may have been performed on the lot; it must be building work under the contract to satisfy s 14(f)(ii)(A). No building work under the contract could have been performed prior to 1 April 2013 when the deed of variation took effect. [34] The building work under the contract must then be building work which was performed after 1 April 2013 as that is the date that the building work under the contract was specified and moreover after 8 November 2013 when the development approval was granted in accordance with the Sustainable Planning Act 2009. [35] The transaction entered by D & V Hambling is not an eligible transaction because the building work under the contract did not start before 1 May 2013. The decision of the Commissioner is confirmed. 24 Sustainable Planning Act 2009 (Qld), s 7. 25 Ibid, s 340. -- 9 of 9 --