Bielefeld v The Commissioner of State Revenue [2015] QCAT 222

CITATION: Bielefeld v The Commissioner of State Revenue [2015] QCAT 222 PARTIES: Jacqueline Kate Bielefeld (Applicant) v The Commissioner of State Revenue (Respondent) APPLICATION NUMBER: GAR277-14 MATTER TYPE: General administrative review matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Acting Senior Member Hughes DELIVERED ON: 15 June 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. The Commissioner of State Revenue’s decision to refuse the application for the First Home Owner’s Grant is set aside. 2. The correct and preferable decision is that Jacqueline Kate Bielefeld completed an eligible transaction for the First Home Owner Grant. CATCHWORDS: GENERAL ADMINISTRATIVE REVIEW - FIRST HOME OWNER GRANT ––– whether ‘eligible transaction’ - whether ‘home’ – where applicant contracted for builder to undertake building work - where builder used relocated house - where applicant did not buy house ‘fixed to land’ – whether ‘new home’ – whether home ‘previously occupied or sold as a place of residence’ - where building could not have been ‘lawfully used as place of residence’ and was not a ‘suitable building for use as place of residence’ - where substantial change to building – whether ‘substantially renovated’ -- 1 of 11 -- 2 home – whether ‘contract for the purchase of the home’ requires acquiring a ‘relevant interest in land’ to determine ‘substantially renovated’ – where no express words to that effect – whether ‘comprehensive home building contract’ – where building contract from deposit to completion First Home Owner Grant Act 2000 (Qld) ss 5, 6, 10, Schedule Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 20, 23 In re Jose [1941] SASR 26 O’Neill v. Commissioner of State Revenue [2014] QCAT 482 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). REASONS FOR DECISION What is this Application about? [1] Jacqueline Bielefeld engaged a builder to build her home. The Builder used a relocated house. Ms Bielefeld applied for the First Home Owner Grant. The Commissioner of State Revenue decided that Ms Bielefeld is ineligible for the grant because in the Commissioner’s view, Ms Bielefeld did not buy a ‘new home’. Ms Bielefeld therefore wants the Tribunal to review the Commissioner’s decision. [2] The Tribunal may confirm, amend or set aside the Commissioner’s decision and substitute a new decision.1The Tribunal’s role is to produce the correct and preferable decision2 by way of a fresh hearing on the merits.3 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 23(2). 2 Ibid, s 20(1). 3 Ibid, s 20(2). -- 2 of 11 -- 3 When is a transaction ‘eligible’ for the First Home Owner Grant? [3] A first home owner grant is payable for an ‘eligible transaction’.4 An ‘eligible transaction’ is:  a contract made on or after 1 July 2000 for the purchase of a ‘new home’;5  a ‘comprehensive home building contract’ made or after 1 July 2000 to have a ‘new home’ built on the land;6  the building of a ‘new home’ by an ‘owner builder’ on or after 1 July 2000;7  a contract made on or after 1 July 2000 but before 11 October 2012 to purchase a ‘home’ (other than a ‘new home’);8  a ‘comprehensive home building contract’ made on or after 1 July 2000 but before 11 October 2012 to have a ‘home’ (other than a ‘new home’) built on the land;9or  the building of a ‘home’ (other than a ‘new home’) by an ‘owner builder’ on or after 1 July 2000 but before 11 October 2012.10 What was Ms Bielefeld’s transaction? [4] On 1 June 2013, Ms Bielefeld entered into a Residential Building Contract11 for Bielefeld Building Pty Ltd to carry out and complete the following works on her land at 27 Free Street, Nobby for $79,995.00:  Engineers Design, Plans and Excavation of Sites  House Removal and Relocation of Stump Pile  Waste System, Electrical and Plumbing  Final Inspection [5] Because Ms Bielefeld’s contract was made on or after 11 October 2012, she can only be eligible if it relates to a ‘new home’.12 4 First Home Owner Grant Act 2000 (Qld) s 10(1)(b). 5 Ibid, s 5(1)(a). 6 Ibid, s 5(1)(b). 7 Ibid, s 5(1)(c). 8 Ibid, s 5(2)(a). 9 Ibid, s 5(2)(b). 10 Ibid, s 5(2)(c). 11 Residential Building Contract between Jacqueline Kate Bielefeld as Owner and Bielefeld Building Pty Ltd as Contractor dated 1 June 2013. -- 3 of 11 -- 4 Is Ms Bielefeld’s transaction for a ‘new home’? How and when did Ms Bielefeld acquire her ‘home’? [6] A ‘home’ is a building, fixed to land, that:  May lawfully be used as a place of residence; and  Is a suitable building for use as a place of residence.13 [7] Ms Bielefeld claims that if material was damaged in transit or in the construction process, it would not have impacted her. She claims that this is because it would have been the Builder’s responsibility to replace it at no extra cost to her as she did not own the structure or any of the material until rebuilt and certified.14 I agree with her analysis. [8] This is because Ms Bielefeld did not contract to buy the house fixed at 6 View Street, South Toowoomba. Indeed, Ms Bielefeld did not contract with anyone to for her to buy any building ‘fixed to land’, or for her to remove and relocate a house. [9] Ms Bielefeld entered into a Contract to build - to have the Builder undertake building work. The work was to build a home and included the Builder removing and relocating an unspecified house. While it would appear that a house was relocated from 6 View Street, South Toowoomba, Ms Bielefeld did not contract to buy that house, or any other house, ‘fixed to land.’ Ms Bielefeld had no right under the Contract to take possession of the house that had been fixed at 6 View Street, Toowoomba or any other building ‘fixed to land’. [10] Ms Bielefeld’s unrefuted evidence is that her Builder did not buy a house but entered into an agreement to demolish and clean a site.15At most, Ms Bielefeld would be buying a building from the Builder once the Builder removed it from the land. At that point, the building would not be ‘fixed to land’. [11] Because the Contract does not specify the house to be removed and relocated, the Builder had no obligation under the Contract to remove and relocate a specific house. Under her Contract, Ms Bielefeld could not have sought specific performance compelling the Builder or anyone else to remove and relocate the house at 6 View Street, South Toowoomba, or any other building ‘fixed to land’. [12] I am therefore not satisfied Ms Bielefeld’s contract related to the house at 6 View Street, Toowoomba or any other house ‘fixed to land’. When the building was ‘fixed to land’ before being removed and relocated by the Builder, Ms Bielefeld did not acquire it, have any right to it, or any legal interest in it. 12 First Home Owner Grant Act 2000 (Qld) s 5(1)(a), (b) and (c). 13 First Home Owner Grant Act 2000 (Qld) s 6(1). 14 Response to Statement of Reasons and Submissions of the Commissioner dated 10 November 2014, page 2. 15 Ibid, page 1. -- 4 of 11 -- 5 [13] When the builder removed and relocated the building from 6 View Street, South Toowoomba, Ms Bielefeld acquired something that was not ‘fixed to land’,16 could not ‘lawfully be used as a place of residence’17 and was not ‘a suitable for use as a place of residence’.18 It was therefore not a ‘home’. At most, it would simply be a building, rather than a ‘home’. [14] The building did not become a ‘home’ until it was ‘fixed to land’,19 could ‘lawfully be used as a place of residence’20 and was ‘a suitable building for use as a place of residence’.21 The building did not meet building compliance standards in its former state and was to be demolished. Ms Bielefeld was therefore not to take possession until the building was certified. This required ‘major structural changes’22 including new plans23, replacing brick foundations with new steel stumps, footings24, bearers, plumbing.25 [15] Once this work was done, the building was certified as complete and compliant with Council standards.26 At that point, it was ‘fixed to (Ms Bielefeld’s) land’,27 could ‘lawfully be used as a place of residence’28 and was a ‘suitable building for use as a place of residence’29 - it had then become a ‘home’.30 Was Ms Bielefeld’s home a ‘new home’? [16] A ‘new home’ is a ‘home’:  not previously occupied or sold as a place of residence;31 or  is a substantially renovated home.32 [17] I am satisfied that Ms Bielefeld’s home qualifies as a ‘new home’ under either test, for the reasons below. Was the home ‘previously occupied or sold as a place of residence’? 16 First Home Owner Grant Act 2000 (Qld) s 6(1). 17 Ibid, s 6(1)(a). 18 First Home Owner Grant Act 2000 (Qld) s 6(1)(b). 19 Ibid, s 6(1). 20 Ibid, s 6(1)(a). 21 Ibid, s 6(1)(b). 22 Response to Statement of Reasons and Submissions of the Commissioner dated 10 November 2014, page 3. 23 Letter Robert J Steger, Director & Building Designer, Arenkay Building Designs To Whom It May Concern dated 7 March 2014. 24 Letter Lindsay B Reid, Reid Consulting Engineers to Bielefeld Building dated 13 March 2014. 25 Letter Brett Kenyon, Toowoomba Clearwater to Ross Bielefeld dated 10 March 2014. 26 Letter Matthew Whittaker, Building Certifier, Toowoomba Regional Council to Bielefeld Building Pty Ltd enclosing Final Inspection Certificate dated 22 October 2013. 27 First Home Owner Grant Act 2000 (Qld) s 6(1). 28 Ibid, s 6(1)(a). 29 Ibid, s 6(1)(b). 30 Ibid, s 6(1). 31 Ibid, s 6(2)(a). 32 Ibid, s 6(2)(b). -- 5 of 11 -- 6 [18] I am not satisfied that Ms Bielefeld’s home was ‘previously occupied or sold as a place of residence.’ Ms Bielefeld did not simply engage the Builder to perform a cosmetic makeover. While the original building that was ultimately relocated to her house may at some point have been ‘previously occupied as a place of residence’, her ‘home’ is not that building. The evidence suggests that the building underwent substantial change. Her ‘home’ is therefore a building that has not been ‘previously occupied or sold as a place of residence’. [19] The Commissioner cites the decision of O’Neill,33to support her submission that the building was a ‘home’ at its previous location, but not a ‘new home’:34 A building is a home if it complies with the requirements of [s 6(1)] of the [First Home Owner Grant Act 2000], including that it be suitable for use, and lawfully able to be used, as a place of residence and it is fixed to land. It is significant here that the buildings in applications 1 and 3 were not moved from land on which they had been used as a residence but were moved from land owned by the removal company. At the time they were moved they were not homes they were only buildings. It would only be after all of the work that was to be done by the removal company and [the applicant’s] other contractors that it could be said that they were homes. It is not that removal homes lose their identity as “existing” or “used’ residences per se but a building must be a home before the test in [s 6(2)] can be applied to it and while in the removalist’s yard they are not homes only buildings. The Tribunal is satisfied that this interpretation is consistent with the… Act as the supply of housing is increased by converting a building shell into a home and there is considerable employment involved in the process of relocating a building onto new land to be used as a residence. The situation in respect of application 2 is different as that building was a home at the time it was purchased by [the applicant] as it was fixed to land which [the applicant] purchased… The test of whether a home is a new home can only be applied when the building is a home that means all of the building work in respect of the building must be complete. In regard to application 2 the test can be applied as at the date of the application as [the applicant] was the owner of the home at that time and it was to be later moved to another part of the land she owned after it was subdivided.35 [20] Ms Bielefeld did not buy the building at the time it was ‘fixed to land’. Although the building may have been moved from land on which it had been used as a residence, unlike application 2 in O’Neill it was not part of Ms Bielefeld’s transaction. Ms Bielefeld acquired it from the Builder, who did not have it ‘fixed to land’. Ms Bielefeld therefore did not contract to remove a house ‘fixed to land’. 33 O’Neill v. Commissioner of State Revenue [2014] QCAT 482. 34 Respondent’s Submissions dated 30 October 2014, paragraphs 15 to 16. 35 O’Neill v. Commissioner of State Revenue, Ibid at [38] to [41] – the Commissioner cited paragraph numbering used in the unreported version of the decision. I have adopted the numbering used in the reported version of the decision. Although the numbering differs, the content is the same. -- 6 of 11 -- 7 [21] Ms Bielefeld entered into a building contract for the Builder to perform building work that included the Builder removing and relocating a house. Just like applications 1 and 3 in O’Neill, when Ms Bielefeld acquired the building from the Builder, it was not ‘fixed to land’,36 could not ‘lawfully be used as a place of residence’37 and was not a ‘suitable building for use as a place of residence’.38 [22] Applying the learned Member’s reasoning in O’Neill, the test of whether Ms Bielefeld’s ‘home’ is a ‘new home’ can only be applied when all the building was complete. That was final certification on 22 October 2013.39 It was only at that point that it became a ‘home’,40 because only then could it ‘lawfully be used as a place of residence’41 and was a ‘suitable building for use as a place of residence’.42 In this completed state, it had ‘not have been previously occupied or sold as a place of residence’ and is therefore a ‘new home’.43 Was the home a ‘substantially renovated’ home? [23] I am satisfied that Ms Bielefeld’s home is ‘a substantially renovated home’ that also qualifies it as a ‘new home’.44 [24] A home is ‘substantially renovated’ if:  subject of a contract for the purchase of the home;45  a taxable supply for GST purposes;46 and  the home, as renovated, has not previously been occupied or sold as a place of residence.47 Was the home ‘subject of a contract for the purchase of the home’? [25] The Commissioner submitted that a ‘contract for the purchase of the home’ requires Ms Bielefeld to acquire an interest in land. The Commissioner submitted that because Ms Bielefeld already held an interest in the land to where the building was being re-located, Ms Bielefeld did not enter into a ‘contract for the purchase of a home’.48 36 First Home Owner Grant Act 2000 (Qld) s 6(1). 37 Ibid, s 6(1)(a). 38 Ibid, s 6(1)(b). 39 Letter Matthew Whittaker, Building Certifier, Toowoomba Regional Council, to Bielefeld Building Pty Ltd enclosing Final Inspection Certificate dated 22 October 2013. 40 First Home Owner Grant Act 2000 (Qld) s 6(1). 41 Ibid, s 6(1)(a). 42 Ibid, s 6(1)(b). 43 Ibid, s 6(2)(a). 44 Ibid, s 6(2)(b). 45 Ibid, s 6(3)(a). 46 Ibid, s 6(3(b). 47 Ibid, s 6(3(c). 48 Decision and statement of reasons dated 4 July 2014, paragraph 31. -- 7 of 11 -- 8 [26] In the Commissioner’s view, the words ‘contract for the purchase of the home’ in section 6(3)(a) correspond with the words ‘contract… for the purchase of a new home…’ in section 5(1)(a). Section 5(1)(a) is read subject to section 5(3). Section 5(3) requires that a ‘contract for the purchase of a home’ includes acquiring a relevant interest in land. The Commissioner submitted that section 6(3)(a) should therefore also be read subject to section 5(3). [27] I must respectfully disagree with the Commissioner’s submission. Section 5(3) explicitly begins with the words ‘For subsections (1)(a) and (2)(a)…’., referring to sections 5(1)(a) and 5(2)(a). These provisions relate to contracts to purchase other than a ‘comprehensive building contract’, addressed separately by section 5(1)(b). If Parliament had intended section 5(3) to apply to section 5(1)(b), it would have been a simple exercise to expressly say so. It did not. Therefore, as a matter of statutory construction, I am not satisfied that Parliament intended section 5(3) to apply to section 5(1)(b) in the absence of express words to that effect.49 [28] The Contract is a Residential Building Contract for a “new residence as per quotation”. Ms Bielefeld’s Contract included design, plans and excavation of sites, remove and relocate the building, stumping and plumbing and electrical installation.50Once constructed, the building could ‘lawfully be used as a place of residence’ and was ‘suitable for use as a place of residence’. [29] I am therefore satisfied it is a contract for the purchase of the ‘home’ for the purposes of section 6(3)(a). Was the sale of the home a taxable supply for GST purposes? [30] The Commissioner appears to have accepted that the sale of the home was a taxable supply for GST purposes.51Certainly, there is no evidence to the contrary and is consistent with an email to that effect from Ms Bielefeld’s accountant.52 [31] I therefore accept that that the sale of the home is a taxable supply for GST purposes. Had ‘the home, as renovated, not previously been occupied or sold as a place of residence’? [32] It is clear that ‘the home, as renovated, has not been previously occupied or sold as a place of residence’.53 Ms Bielefeld is the first occupier since its renovation. 49 In re Jose [1941] SASR 26 at 30. 50 Residential Building Contract between Jacqueline Kate Bielefeld as Owner and Bielefeld Building Pty as Contractor dated 1 June 2013, page 9. 51 Decision and statement of reasons dated 4 July 2014, paragraph 46. 52 Email Brad M. Hancock, Senior Accountant, Power Tynan to Michelle Bielefeld dated 13 March 2014. 53 First Home Owner Grant Act 2000 (Qld) s 6(3)(c). -- 8 of 11 -- 9 Is Ms Bielefeld’s transaction an ‘eligible transaction’? [33] Because of my above reasons, I am satisfied Ms Bielefeld’s transaction is for a ‘new home’. [34] This means that Ms Bielefeld will be eligible if her transaction was:  A ‘contract to purchase a new home’ made on or after 1 July 2000;54  A ‘comprehensive home building contract’ made on or after 1 July 2000 to have a ‘new home’ built on the land;55or  The ‘building of a new home by an owner builder’ on or after 1 July 2000.56 [35] Ms Bielefeld’s contract is dated 1 June 2013 and is therefore ‘made on or after 1 July 2000’. Is Ms Bielefeld’s transaction a ‘contract to purchase a new home’? [36] Because Ms Bielefeld did not acquire an interest in land under her Contract, I am not satisfied that her transaction is a ‘contract for the purchase of a new home’, for the purposes of section 5(1)(a).57 Is Ms Bielefeld’s transaction a ‘comprehensive home building contract’? [37] A ‘comprehensive home building contract’ relevantly means 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.58 [38] The building is currently ‘lawfully used as a place of residence’ and is a ‘suitable building for use as a place of residence’.59 It is therefore a ‘home’.60 [39] It would appear that Ms Bielefeld’s contract differs little from any other contract to build a home, other than the stage requiring “house removal and relocation”. It is a question of degree whether relocating and removing a house equates to building a home from the start of building work. [40] The building costs were not insubstantial. The Contract comprised four stages, from Deposit to Final Inspection. They included Plan Design, Site Excavation, removing and relocating a house and stump pile, and installing a waste system, electrical and plumbing. 54 Ibid, s 5(1)(a). 55 Ibid, s 5(1)(b). 56 Ibid, s 5(1)(c). 57 First Home Owner Grant Act 2000 (Qld) s 5(3), contrast with similar wording used in section 6(3)(a) which does not have the same prescribed meaning, as explained in my reasons at [28]. 58 Ibid, Schedule definition of ‘comprehensive building contract’. 59 Final Inspection Certificate dated 22 October 2013. 60 First Home Owner Grant Act 2000 (Qld) s 6(1). -- 9 of 11 -- 10 [41] Ms Bielefeld’s unrefuted evidence is that the internal and external size and shape of the building has been structurally altered with part of a wall removed and reconstructed, rooms altered, decks added, verandas added, new bearers, joists, flooring and roof repairs, new architect plans, new excavations, new footings, new foundations, new stumps, new entry and altering size of roofed deck area, new steps and slatting, replacing roof tiles, new doors, new energy efficiency, new windows, new electrical with new meter box and connection to power supply, rewiring, new plumbing fixtures and fittings including a biocycle system as per council requirements for new houses, new windows, replacing guttering, bracing and tie down.61 Ms Bielefeld’s unrefuted evidence is that the house has effectively been rebuilt using partly, but not exclusively, recycled materials. The plans were drawn by an architect as required for a new home.62 [42] Whether or not the Builder sub-contracted any of these works does not abrogate from the Builder’s primary contractual obligations with Ms Bielefeld to undertake the work as Principal Contractor. Ms Bielefeld’s rights to have the work done are enforceable against the Builder under the Contract. [43] Once the work was done, the building was certified as complete and compliant with Council standards.63 It was ‘ready for occupation’.64 [44] Based on this evidence, I am satisfied that the substantial work in transforming the building into a ‘home’ under the contract was sufficient to equate to building a home from start. [45] I am therefore satisfied that Ms Bielefeld’s transaction was a ‘comprehensive home building contract’.65 Is Ms Bielefeld’s transaction the ‘building of a new home by an owner builder’? [46] An ‘owner builder’ is an owner of land who builds a home, or has a home built, on the land without entering into a ‘comprehensive home building contract’.66 [47] Because I have determined that Ms Bielefeld entered into a ‘comprehensive home building contract’, she cannot be an ‘owner builder’. What are the appropriate Orders? [48] Because I have determined that Ms Bielefeld entered into a ‘comprehensive home building contract’ after 1 July 2000 to have a ‘new home’ built on the land, 61 Letter Jacqueline Bielefeld to First Home Owner Grant (sic) dated 14 March 2014; Response to Statement of Reasons and Submissions of the Commissioner dated 10 November 2014, page 3; Letter Jacqueline Bielefeld To Whom It May Concern dated 19 February 2015. 62 Letter Jacqueline Bielefeld to First Home Owner Grant (sic) dated 14 March 2014. 63 Letter Matthew Whittaker, Building Certifier, Toowoomba Regional Council to Bielefeld Building Pty Ltd enclosing Final Inspection Certificate dated 22 October 2013. 64 First Home Owner Grant Act 2000 (Qld) Schedule definition of ‘comprehensive building contract’. 65 Ibid, s 5(1)(b). 66 Ibid, Schedule definition of ‘owner builder’. -- 10 of 11 -- 11 I am satisfied that she has completed an ‘eligible transaction’ for the First Home Owner Grant. The appropriate Orders are therefore: 1. The Commissioner of State Revenue’s decision to refuse the application for the First Home Owner’s Grant is set aside. 2. The correct and preferable decision is that Jacqueline Kate Bielefeld completed an eligible transaction for the First Home Owner Grant. -- 11 of 11 --