Commissioner of State Revenue v Gundachar [2017] QCATA 79

PARTIES: Commissioner of State Revenue (Appellant) v Jayasimha Gundachar (Respondent) APPLICATION NUMBER: APL443-16 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Lumb DELIVERED ON: 20 July 2017 DELIVERED AT: Brisbane ORDERS MADE: 1. The appeal is allowed. 2. The decision of the Tribunal made on 12 December 2016 is set aside. 3. The matter is returned to the Tribunal for reconsideration according to law. 4. The parties shall file (and serve on the other party), within 14 days of the date of these orders, written submissions (no longer than 4 pages) in respect of the question of costs of the appeal. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES IN GENERAL – WRONG PRINCIPLE – where Commissioner of State Revenue refused application for a grant under the Building Boost Grant Act 2011 (Qld) – where application related to the purchase of a lot “off the plan” – where Commissioner disallowed an objection against that decision – where Tribunal reviewed decision and set it aside – where Tribunal found that preparation of plans for building work constituted “building work” within the meaning of s 14(f) of the Act – whether Tribunal erred in law in its construction of the phrase “building work” CITATION: Commissioner of State Revenue v Gundachar [2017] QCATA 79 -- 1 of 15 -- 2 Acts Interpretation Act 1954 (Qld), s 14A Building Boost Grant Act 2011 (Qld), s 3, s 5, s 6, s 7, s 8, s 12, s 13, s 14, s 16, s 17, s 18, s 97, s 120 Queensland Buildings and Construction Commission Act 1991 (Qld), Schedule 1B, Schedule 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 17, s 142, s 146, s 147 Allways Resource Holdings Pty Ltd & Anor v Samgris Resources Pty Ltd & Anor [2017] QSC 74 Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 248 CLR 378; [2012] HCA 56 Commissioner of Taxation v Unit Trend Services Pty Ltd (2013) 250 CLR 523; [2013] HCA 16 Coverdale v West Coast Council (2016) 214 LGERA 160; [2016] HCA 15 Ericson v Queensland Building Services Authority [2013] QCA 391 Fearnley v Finlay [2014] 2 Qd R 392 Norrie v NSW Registrar of Births, Deaths and Marriages (2013) 84 NSWLR 697 NSW Registrar of Births, Deaths and Marriages v Norrie (2014) 250 CLR 490 Registrar of Titles (WA) v Franzon (1975) 132 CLR 611 State of Queensland & Anor v Aigner [2013] QCATA 151 Woodforth v State of Queensland [2017] QCA 100 APPEARANCES: This appeal was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“the QCAT Act”). REASONS FOR DECISION Introduction [1] This is an appeal by the Commissioner of State Revenue (“the Commissioner”) against a decision of a Tribunal Member (“the Member”) made on 12 December 2016 (“the Decision”) setting aside a decision of the Commissioner disallowing an objection by the Respondent, Jayasimha Gundachar (“the Respondent”) against the Commissioner’s decision dated -- 2 of 15 -- 3 26 February 2015 to refuse the Respondent’s application for a grant under the Building Boost Grant Act 2011 (Qld) (“the BBGA”). The appeal was commenced by an Application for leave to appeal or appeal filed on 22 December 2016 (“the Application”). [2] By the Decision, the Member ordered that, first, the Commissioner’s decision to refuse the application for a grant be set aside and, secondly, that the Commissioner must pay the Respondent and Jyothi Jayasimha (collectively “the Purchasers”) the “building boost grant” in respect of a contract to purchase Lot 220, Varsity Parade, Varsity Lakes described as Lot 200 on SP 246290, title reference 5090560 (“the Lot”). The Lot formed part of Stage 2B of a development known as the “Edgewater Development”. [3] In making the Decision, the Member was exercising the Tribunal’s review jurisdiction in relation to the Commissioner’s decision.1 [4] By the Application, the Commissioner seeks to appeal the Decision relying on two asserted errors of law.2 The first is that the Member erred in law by construing the term “building work” in the BBGA as including preparation of plans for a building. The second is that the Member erred in law by construing the term “building work” in accordance with the definition of that term in the “Queensland Building and Construction Act” 1991 (which seems clearly enough to have been a reference to the Queensland Building and Construction Commission Act 1991 (Qld) (“the QBCCA”)). The BBGA [5] The purpose of the BBGA is to stimulate the housing market in Queensland in assisting the affordability of housing, increasing the supply of housing and supporting employment in the housing construction industry.3 The purpose is to be achieved mainly by establishing a scheme for payment of a “building boost grant”. 4 [6] Generally, a “building boost grant” is the grant payable under Part 2 of the BBGA.5 [7] A building boost grant may be sought in relation to a transaction being an “eligible transaction”.6 In order to qualify for a building boost grant, an applicant must enter into an eligible transaction comprising one of an “eligible home purchase contract”, an “eligible home building contract” or an “eligible owner-builder arrangement”. 7 1 See s 97 of the BBGA and s 17 of the QCAT Act. 2 The Commissioner listed three grounds of appeal in the Application but no longer presses the third ground: Commissioner’s submissions, [17] and [18]. 3 Section 3(1). 4 Section 3(2). 5 Section 5(1). 6 Sections 5(2) and 12. 7 Sections 6, 14, 16 and 17. -- 3 of 15 -- 4 [8] Section 18 of the BBGA specifies various transactions that are not “eligible transactions”. That provision is not material to this appeal. The Decision [9] The “eligible transaction” in respect of which the Member found that the Purchasers were entitled to the building boost grant was an eligible home purchase contract. The transaction in question comprised a contract dated 27 April 2012 (“the Contract”) for the purchase “off the plan” by the Purchasers of the Lot for a purchase price of $409,500.00. [10] The Member found that all of the elements set out in s 14 (which concerns an eligible home purchase contract) had been satisfied.8 [11] In relation to the requirements of subsection 14(f), the Member found that subsection 14(f)(ii)(A) had been satisfied.9 It is that finding which is challenged by the Commissioner. The appeal [12] Subsection 142(1) of QCAT Act provides that a party to a proceeding may appeal to the Appeal Tribunal against a decision of the Tribunal in the proceeding if a judicial member did not constitute the Tribunal in the proceeding. The Member was not a judicial member. [13] While an appeal on a question of law is as of right, an appeal on a question of fact, or of mixed fact and law, may only be made with the leave of the Appeal Tribunal.10 [14] There is no challenge by the Commissioner to the factual findings made by the Member. [15] The issue for determination concerns the proper construction of subsection 14(f) of the BBGA and, in particular, the phrase “building work”. As discussed below, the Member’s finding in relation to subsection 14(f) was premised on the conclusion that the phrase “building work”, properly construed, included the preparation of plans for the performance of building work. Although it is often difficult to distinguish between a question of law only and a question of fact or mixed question of fact and law, it is my view that the grounds of appeal raised by the Commissioner raise a question of law involving the proper construction of the BBGA.11 8 Reasons, [31]-[33]. 9 Reasons, [31]. 10 QCAT Act, s 142(1), s 142(3)(b). 11 See e.g. Woodforth v State of Queensland [2017] QCA 100, [5] (McMurdo JA, Holmes CJ and Bond J agreeing); Fearnley v Finlay [2014] 2 Qd R 392, [11] (Jackson J, Holmes JA (as she then was) and Morrison JA agreeing); Norrie v NSW Registrar of Births, Deaths and Marriages (2013) 84 NSWLR 697, [52]-[64] (Beazley ACJ) (the decision of the Court being varied by the High Court in NSW Registrar of Births, Deaths and Marriages v Norrie (2014) 250 CLR 490). -- 4 of 15 -- 5 The issue for consideration [16] Subsection 14(f) of the BBGA sets out the requirement that: 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 Note— See section 120.12 (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. [17] In the Reasons, the Member addressed subsection 14(f)(ii). Neither party has raised a contention in relation to any possible application of subsection 14(f)(i). [18] In relation to subsection 14(f)(ii), the Member said that he was satisfied that the relevant building work for the purpose of that subsection was concerned with the building of which the Lot formed part.13 The Member found that the Contract (for the purchase of the Lot) related to Stage 2B of the Edgewater development and the plans annexed to the Contract showed that this was a freestanding building.14 [19] The unchallenged finding of the Member was that subsection 14(f)(ii)(B) had been satisfied. 15 [20] The critical question is whether the Member correctly concluded that subsection 14(f)(ii)(A) had been engaged. The Member’s reasoning for that conclusion was as follows: [28] The material which relates to the building of which [the Respondent’s] lot forms part is that in regard to the preparation of the plans which show that they were commenced on 22 December 2012 and the footings for which the Form 16s show they were inspected at the earliest on 11 September 2013. [29] The question then is whether the preparation of the plans forms part of the building work under the contract. Schedule 3 of the contract under the heading STRUCTURE includes Foundations Screw piling/pad footings with reinforced concrete to engineers detail. The Commissioner has accepted 12 Section 120 is a transitional provision which provides that subsection 14(f)(i) (as in force on and from 1 February 2012) applies to a home purchase contract made on or after 1 August 2011 and before 1 May 2012. 13 Reasons, [26]. 14 Reasons, [26]. 15 Reasons, [31]. -- 5 of 15 -- 6 that work comprised in schedule 3 is building work. I also note that the definition of “building work” in the Queensland Building and Construction Act 1991 includes the preparation of plans and specification for the performance of building work. [30] I am satisfied that the documents referred to in the ADG Document register/transmittal include detail for the Basement – footing and slab on ground plan represents the work mentioned in Schedule 3 in regard to engineers detail. The Commissioner submitted that the relevant date in respect of this building is 29 July 2013. This though is the date that the plans were approved. [31] The relevant date for the purpose of s14(f)(ii) of the BBG Act is the date that work on the plans started and that date is 21 December 2012 in accordance with the schedule. This means that the building work under the contract started before 1 May 2013 and s14 (f) (ii) (A) is satisfied. That section also requires that the building work be completed prior to 1 May 2015. I note that the title for lot 220 was transferred to [the Respondent] on 1 July 2014 and so that requirement is also satisfied. (footnote omitted) Commissioner’s case [21] The two grounds of appeal concerning subsection 14(f)(ii) focus on what the Commissioner asserts is not involved in relevant “building work”, namely the preparation of plans for a building. [22] The Commissioner relies on the Oxford Dictionary of English meaning of the term “building” being “the action or trade of constructing something”.16 [23] The Commissioner references the use of the phrase “building work” in other provisions in the BBGA, including the definition of “comprehensive homebuilding contract”.17 The Commissioner further contends that if the phrase “building work” were construed to include the preparation of plans, a “home building contract” would not be eligible if it did not provide for the builder to prepare the plans because “home building contracts” are not eligible if they do not provide for the builder to undertake all “building work” from the start of “building work” to completion.18 Respondent’s case [24] The Respondent’s submissions dated 28 March 2017 and filed on 4 April 2017 are relatively brief. These submissions are as follows: We are submitting this document in reference to APL443-16. This appeal from Commissioner of state Revenue has come about as Member Allen decided my application for Queensland Building Boost Grant was correct and he decided in favour of me (GAR 082-15). 16 Commissioner's submissions, paragraph 28. 17 Commissioner's submissions, paragraphs 22, 23, 24 and 29. 18 Commissioner's submissions, paragraph 30. -- 6 of 15 -- 7 We are a Mum and Dad investors who wanted to invest in Queensland and we took the decision in 2012, mainly because of Building Boost Grant. Since the first application was made in 01/02/2013 this issue is being played on our family. Our whole point of view was that the construction of our Unit was in Edge water Resident development, Member Allen agreed with us and awarded the Grant. We as a family would request you kindly agree with decision given by Member Allen (GAR 082-15) and put this matter to rest. We have enclosed the documents that we used in the Tribunal Hearing. [25] The Commissioner, in Submissions in Reply filed on 26 April 2017, submitted that the Respondent sought to relitigate an argument rejected by the Member that the “building work” should be taken to have commenced when “building work” for the Edgewater Development as a whole commenced and not when “building work” for Stage 2B commenced. Section 14 of the BBGA [26] The requirements of s 14 of the BBGA include the following: a) There must be a contract for the purchase of a “new home” that is, or is to be, built on land in the State (subsection (a)). The subject matter of the contract is the “purchase” of a new home being one that is an existing new home or is one that is to be built; b) A monetary limit being less than $600,000 comprising the total of, first, the unencumbered value of the home and, secondly, the unencumbered value of the relevant interest in the residential land at the transaction commencement day for the contract (being the day the contract is made) (subsection (c))19. [27] The requirements of subsection 14(f) apply only to that type of home purchase contract which comprises a contract to purchase a new home on a proposed lot on an unregistered plan of subdivision of land. A “new home” is a home that has not been previously occupied or transferred as a place of residence or is a substantially renovated home.20 In my view, the provision applies not only to a contract for the purchase of a lot “off the plan” (as in the present case) but also to, for example, a house and land package the subject of a proposed subdivision of a greenfield site. [28] Unlike subsection 14(f)(ii), subsection 14(f)(i) is not concerned with the factual question of when “building work” is actually started or completed. Rather, in my view, the provision is taken to be satisfied if the relevant contract provides that the building work is to be started and completed by the respective dates identified, regardless of whether the building work is in fact started and completed by such dates. In this scenario, the legislature 19 See also s 13(a) of the BBGA. 20 See s 8(1) of the BBGA. -- 7 of 15 -- 8 has not tied the receipt of the building boost grant to the actual dates of the starting and completion of the building work. [29] The application of subsection 14(f)(ii) raises the issue of when “the building work under the contract” is started and completed. The contract under which the building work must start and finish is the “home purchase contract”. This phrase is defined in Schedule 2 to mean a contract entered into by a person to purchase a home and a relevant interest in the land on which the home is built, or is expected to be built, on or before the completion of the contract. In this case, that is the Contract. [30] Critical to this case is the proper construction of the phrase “building work”. [31] The BBGA does not define the phrase “building work”. [32] The Explanatory Memorandum provides no guidance as to the meaning of the phrase “building work”. [33] At Reasons [29], the Member noted that the definition of “building work” in the QBCCA included the preparation of plans and specification for the performance of building work. On my reading of the Reasons at [28]-[31], this was an observation necessarily material to the Member’s conclusion that the plans in question formed part of the relevant “building work”. [34] The first issue that arises on the appeal is whether the definition in the QBCCA provides guidance as to the meaning of that phrase in the BBGA. The definition of “building work” under the QBCCA [35] In my respectful view, the definition of “building work” in the QBCCA does not provide a satisfactory basis for interpreting that (undefined) phrase in the BBGA. [36] First, I consider that the BBGA and the QBCCA are not in pari materia.21 The QBCCA is a broad ranging and comprehensive Act whose objects are to regulate the building industry, to provide remedies for defective building work, to provide support, education and advice for those who undertake building work and for consumers and to regulate domestic building contracts to achieve a reasonable balance between the interests of building contractors and building owners. The BBGA is an Act passed in order to stimulate the housing market in Queensland by the provision of a monetary grant in respect of eligible transactions. In my view, there is not a similarity of purpose or subject matter between the respective Acts as would warrant the conclusion that they are in pari materia. [37] Further, the focus of the BBGA is the purchase or building of a “home”. One of the requirements of establishing that a building is a home is that the building is used or intended to be used mainly for residential purposes. Schedule 1B of the QBCCA deals with domestic building contracts. A domestic building contract is a contract to carry out domestic building work; 21 Coverdale v West Coast Council (2016) 214 LGERA 160; [2016] HCA 15, [43]. -- 8 of 15 -- 9 a construction management contract for the provision of building work services for domestic building work; or another contract to manage the carrying out of domestic building work.22 Each of the following is domestic building work: (a) the erection or construction of a detached dwelling; (b) the renovation, alteration, extension, improvement or repair of a home; (c) removal or resiting work for a detached dwelling; (d) the installation of a kit home at a building site. 23 The work is concerned with homes and detached dwellings. If it were relevant to draw a connection between the nature of building work under the BBGA and the QBCCA (which it is not, in my view), there would be a closer analogy with “domestic building work” than “building work “under the QBCCA. [38] Section 4 of Schedule 1B of the QBCCA provides for work that is included as domestic building work. However, domestic building work does not include “excluded building work”.24 The definition of “excluded building work” includes “the preparation of plans, specifications or bills of quantity for the carrying out of domestic building work” (subsection (c)). The preparation of plans and specifications for the carrying out of domestic building work does not constitute “domestic building work”. In my view, this reinforces the conclusion that the statutory definition of “building work” in the QBCCA may not be used in aid of construing the meaning of the phrase “building work” in the BBGA. [39] Secondly, the definition of building work in the QBCCA appears to contemplate that the preparation of plans and specifications are discrete from the performance of “building work”; the legislature has expressly stipulated that the preparation of plans and specifications is to be treated as forming part of the scope of “building work” as defined. The BBGA contains no corresponding definition or provision to that effect. [40] In my respectful view, the Member erred in construing the phrase “building work” in s 14(f) of the BBGA by reference to the definition of “building work” in the QBCCA. [41] The question remains as to whether the phrase “building work” in s 14(f), on its proper construction, encompasses the preparation of plans for the performance of building work. Approach to the construction of the phrase “building work” [42] It was said in Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross:25 The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v 22 Section 3 of Schedule 1B. 23 Section 4(1) of Schedule 1B. 24 Section 4(8) of Schedule 1B. 25 (2012) 248 CLR 378, [24] (French CJ and Hayne J), approved in Commissioner of Taxation v Unit Trend Services Pty Ltd (2013) 250 CLR 523, [47] (French CJ, Crennan, Kiefel, Gageler and Keane JJ). -- 9 of 15 -- 10 Australian Broadcasting Authority, [t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute’ [Emphasis added]. That is, statutory construction requires deciding what is the legal meaning of the relevant provision ‘by reference to the language of the instrument viewed as a whole’, and ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed. (footnotes omitted) [43] In the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation.26 [44] It is a settled canon of statutory interpretation that where the same words appear multiple times in a single piece of legislation, they should ordinarily be given the same meaning unless there is reason to do otherwise.27 Proper construction of the phrase “building work” [45] The term “building” is defined to include part of the building. The term is adopted in s 7 of the BBGA which addresses when a “building” is to be taken to be a “home” for the purposes of the Act. A “home” will always be a building or part of a building but a building or part of the building will only be a “home” if the elements of s 7 are satisfied. [46] In the BBGA, the phrase “building work” is also found in the following definitions: “comprehensive home building contract”, “consideration” (for an eligible transaction) and “owner-builder arrangement”. Those definitions relate to the other two types of “eligible transaction”, namely an eligible home building contract and an eligible owner-builder arrangement. Definition of “comprehensive home building contract” [47] The phrase “comprehensive home building contract” is defined to mean 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. The definition is relevant to the eligible transaction comprising an eligible home building contract. [48] As noted above, a “home” is a building or part of a building which otherwise satisfies the requirements of s 7 of the BBGA. In the definition “comprehensive home building contract”, the reference to “building work” is necessarily a reference to the work that the builder undertakes to “build” a home. 26 Acts Interpretation Act 1954 (Qld), s 14A(1). 27 Allways Resources Holdings Pty Ltd & Anor v Samgris Resources Pty Ltd & Anor [2017] QSC 74, [30] (Bond J), citing Registrar of Titles (WA) v Franzon (1975) 132 CLR 611, 618 (Mason J). -- 10 of 15 -- 11 [49] The term “build” is defined in the Macquarie Dictionary (5th edition) to mean, relevantly, “to construct (something, relatively complex) by assembling and combining parts: build a house; build an empire”. [50] That term “build” is defined in the Shorter Oxford English Dictionary to mean, relevantly, “Construct (a house, church, factory, etc.) as a dwelling or for occupation; construct (a vehicle, road or other large or complex structure) by putting parts or material together” and “Put together (parts, material) into a structure; join together to form a structure; lay, insert, or incorporate in or into as an integral part of a larger unit”. [51] “Building” is defined in the Macquarie Dictionary to mean “a substantial structure with the roof and walls, and the shed, house, department store, etc.” and “the act, business, or art of constructing houses, etc.” The Shorter Oxford English Dictionary defines “building” to include “a thing which is built; a structure, and edifice; a permanent fix thing built for occupation, as a house, school, factory, stable, church, etc.” or “the action of build”. Definition of “consideration” [52] The phrase “building work” is also referred to in subparagraph (b) of the definition of “consideration” in the context of an eligible home building contract. In that context, consideration means the “total consideration payable for the building work to which the contract relates”. The contract referred to in that definition is a “home building contract” which is defined (in Schedule 2) to mean a contract entered into by a person to have a home built by another person. [53] The term “built” is defined in the Macquarie Dictionary (5th edition) to mean, relevantly, “Past tense and past participle of build. – adjective”. In the Shorter Oxford Dictionary it is defined to mean, relevantly, “constructed or constituted, esp. in a specified way; having a specified build; spec. composed of separately prepared parts”. Definition of “owner-builder arrangement” [54] The definition of “owner-builder arrangement” is relevant to the eligible transaction being an eligible owner-builder arrangement. The definition is as follows: “owner-builder arrangement means an arrangement under which a person who has a relevant interest in land builds a home on the land by— (a) carrying out the building work personally; or (b) arranging for the building work to be carried out by another person, other than by entering into a comprehensive building contract with the other person; or -- 11 of 15 -- 12 (c) a combination of carrying out the building work under paragraph (a) and arranging for the work to be carried out under paragraph (b).” [55] The reference to the “carrying out” of “building work” is, in my view, a reference to the building of a home on the relevant land. The provision refers to a person who “builds” a home on land. [56] An “owner-builder” is defined to mean a person who has a relevant interest in land and builds a home, or has a home built, on the land under an owner- builder arrangement The meaning of “building work” in the BBGA [57] In my view, the phrase “building work” in each of the above definitions is concerned with the building of a home and that there is a consistency in the language involving the terms “build”, “builds” and “built”. The focus of the respective dictionary definitions of “build” and “built” is on constructing a house or building by putting parts or material together; they are concerned with the physical assembling and combining of parts to create a structure. In my view, the respective definitions in the BBGA in which “building work” contemplate the physical aspects of constructing a new home. I consider that the preparation of plans (or specifications) for the performance of such work does not constitute “building work” as contemplated by the Act. [58] Is a different meaning to be given to the phrase “building work” in subsection 14(f)? That subsection is necessarily concerned with a contract to purchase a new home on a proposed lot on an unregistered plan of subdivision of land. Having regard to subsection 14(a), it is necessarily a purchase of a new home that is to be “built” on land in the State. In my view, the reference to “built” is synonymous with the corresponding phrases considered in relation to the definitions discussed above. I consider that there is no indication in the language of s 14 or elsewhere in the BBGA that would suggest that the phrase “building work” in s 14(f) should be given a different meaning from what I consider to be the proper meaning of “building work” in the respective definitions identified above. [59] I conclude that the meaning of the phrase “building work” in s14(f) (and elsewhere in the BBGA) is work involved in the physical construction of a “home” within the meaning of that term in the BBGA. [60] In my view, such a conclusion is consonant with the purpose of the BBGA to stimulate the housing market in Queensland, including by increasing the supply of housing and supporting employment in the housing construction industry. Such “building work” constitutes the physical construction of housing thereby necessitating the engagement of tradespeople to perform such work. The mere preparation of plans and specifications will not necessarily lead to the commencement of any building work. Such plans, which are often prepared by draughtspersons (or architects) may be prepared well in advance of any building work. -- 12 of 15 -- 13 [61] While a factual question may arise as to precisely when the work involved in the physical construction of a home “starts” (for example, whether it includes site work such as sewerage and drainage or the digging of trenches preparatory to installing footings/foundations), I consider that the preparation of plans (or specifications) for the performance of building work does not constitute “building work” within the meaning of that phrase in the BBGA; it is not work involved in the physical construction of a home. [62] In my respectful view, the Member erred in law in construing the phrase “building work” in s 14(f) of the BBGA: a) by reference to the statutory definition of that phrase in the QBCCA; and b) as including the preparation of plans for the performance of building work. [63] Subject to a consideration of the Respondent’s argument in relation to when the relevant “building work” commenced, I consider that the appeal should be allowed and the Decision set aside. Respondent’s case below [64] The Member rejected an argument by the Respondent that subsection 14(f)(ii) of the BBGA was satisfied because the relevant building work started when the building work in relation to the Edgewater Development as a whole started. The Member said:28 [26] Section 14(f)(ii) requires that “the building work under the contract is started before 1 May 2012”. The contract is for Mr Gundachar’s lot in stage 2B of the Edgewater development and the plans annexed to the contract show that this is a freestanding building. I am satisfied that the relevant building work for the purpose of s14(f)(ii) of the BBG Act is that about the building of which Mr Gundachar’s lot forms part. [27] Therefore, the evidence that Mr Gundachar has provided in regard to the start of the Edgewater development as a whole is not relevant to the question of when the building work under the contract started. [65] In my view, these findings by the Member involved a mixed question of law and fact; the factual issues being that the Lot formed part of a freestanding building and that the building work under the Contract related to the freestanding building in respect of which the Lot formed part. [66] In considering leave to appeal on a question of mixed law and fact, the following questions arise: (a) Is there a reasonably arguable case of error in the primary decision? (b) Is there a reasonable prospect that the applicant will obtain substantive relief? 28 Reasons [26]-[27]. The reference to 1 May 2012 should have been a reference to 1 May 2013 (which was the date as applicable on and from 17 February 2012). -- 13 of 15 -- 14 (c) Is leave necessary to correct a substantial injustice to the applicant caused by some error? (d) Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage? 29 [67] The Respondent has not filed his own application for leave to appeal. Nevertheless, in light of the Commissioner’s written submissions in reply, I am content to address the arguments raised. [68] I would refuse leave to appeal that part of the Member’s findings identified above. In my view, there is no readily arguable case of error in the primary decision and there is no reasonable prospect that the Respondent would obtain substantive relief. [69] As noted by the Member, the provision provides for the building work under the contract being started and completed by the specified dates. As noted above, the building work contemplated concerns a new home which is to be built (in this case, a lot forming part of a community titles scheme). [70] The Contract is headed “Edgewater Residences – Stage 2B Apartments”. In light of the factual finding that the Stage 2B Apartments comprised a freestanding building, it was plainly open to the Member to conclude that the “building work” under the Contract related to the building work involved in the construction of the freestanding building which was to constitute the Stage 2B apartments, one of which was to comprise the Lot. [71] Some “off the plan” developments, whether purely residential or mixed-use developments, may be developed in stages. Such developments may take place over a number of years. In a case where building work in relation to an earlier stage of a development had been completed, it would appear anomalous to conclude that building work under a contract relating to a subsequent (discrete) stage of the development had “started” when the building work in respect of the earlier stage had started. In my view, it is unlikely that the legislature intended that the “building work under the contract” in relation to a staged development contemplated that the initial building work carried out in relation to the first stage of a development formed part of the building work under a contract relating to a subsequent stage, particularly where, as here, the subsequent stage constituted a freestanding building. [72] In my view, the Member correctly concluded that the building work under the Contract was the building work relating to Stage 2B of the Edgewater Development. The Respondent’s argument was correctly rejected. Conclusion 29 See sections 146 and 147 of the QCAT Act; State of Queensland & Anor v Aigner [2013] QCATA 151, [7] (Justice Alan Wilson, President, Ms Howard, Member and Ms Fitzpatrick, Member). -- 14 of 15 -- 15 [73] For the reasons set out above, I consider that the appeal should be allowed and the Decision set aside pursuant to s 146 of the QCAT Act. [74] As to the question of whether the Appeal Tribunal should substitute its own decision or to remit (return) the matter to the Tribunal for further consideration, it is only if the determination of the question of law is capable of resolving the matter as a whole in the appellant’s favour that the Appeal Tribunal will be in a position to substitute its own decision; s 146 does not entail any re-hearing of the matter, whether on the evidence below or on fresh evidence.30 [75] Although it is not immediately apparent that, on the proper construction of “building work”, any building work in relation to Stage 2B could have started before 1 May 2013, I consider that the appropriate course is to return the matter to the Tribunal for reconsideration according to law pursuant to s 146(c) of the QCAT Act. The Member proceeded on the basis that plans for the performance of building work constituted “building work” for the purposes of subsection 14(f). That was the focus of the Member’s consideration of the issue in relation to the start of the “building work”. I consider that the preferable course is for the Member to reconsider the matter having regard to the proper construction of the phrase “building work”. [76] The formal orders of the Appeal Tribunal are as follows: 1. The appeal is allowed. 2. The decision of the Tribunal made on 12 December 2016 is set aside. 3. The matter is returned to the Tribunal for reconsideration according to law. 4. The parties shall file (and serve on the other party), within 14 days of the date of these orders, written submissions (no longer than 4 pages) in respect of the question of costs of the appeal. 30 Ericson v Queensland Building Services Authority [2013] QCA 391, [25] (Holmes JA, Fraser JA and Applegarth J agreeing). -- 15 of 15 --