Betts & Anor v Commissioner of State Revenue [2013] QCAT 283

CITATION: Betts & Anor v Commissioner of State Revenue [2013] QCAT 283 PARTIES: Haydn Wadsworth Betts and Ilona Birute Betts (Applicants) v Commissioner of State Revenue (Respondent) APPLICATION NUMBER: GAR414-12 MATTER TYPE: General administrative review matters HEARING DATE: 18 June 2013 HEARD AT: Brisbane DECISION OF: Dr J R Forbes, Member DELIVERED ON: 18 June 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. The application for review is dismissed. 2. The decision of the Respondent Commissioner is confirmed. CATCHWORDS: APPLICATION FOR REVIEW – Building Boost Grant Act 2011 – application for grant for new home – whether appellants entitled to same – intermediate sale as display home – second sale before acquisition by appellants – decision of respondent Commissioner confirmed Queensland Civil and Administrative Tribunal Act 2009 ss 17-24, 32 Building Boost Grant Act 2011 ss 3, 7, 8,12, 14, 94, 95, 96, Schedule 2 Criminal Law Consolidation Act 1935 (SA) s 170 Land Tax Act 1915 (repealed) s 3E(1)(b) Craig v Commissioner of State Revenue Office of State Revenue (Unreported, QCAT Member Rogers, 16 May 2013) R v Jackson (2005) 93 SASR 373; [2005] SASC -- 1 of 5 -- 2 472 Jackman v Commissioner of Land Tax [2010] QLC 3 R v Bachra [2012] SASCFC 31 De Marco v Chief Commissioner of State Revenue [2013] ATC 20-385; [2013] NSWCA 86 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 (QCAT Act). REASONS FOR DECISION [1] This application for review1 concerns the true meaning and interpretation of provisions of the Building Boost Grant Act 2011 (―the BBGA‖). [2] The declared purpose of the BBGA is to stimulate the housing market in Queensland by assisting the affordability of housing, increasing its supply and supporting employment in the housing construction industry.2 [3] On 18 August 2009 the developer Richards Projects Pty Ltd agreed to transfer a house property at 2 Amalia Street, Birkdale, Brisbane (―the property‖) to Allan and Leanne Jones. That transfer was duly registered on 22 September 2009. [4] From 17 August 2009 to 16 September 2011 the property was leased back to Richards Projects Pty Ltd for use as a display home3. [5] On 20 April 2010 a transfer of the property from Allan and Leanne Jones to Leanne Jones was lodged in the office of the Registrar of Titles. [6] On 18 January 2012 the Applicants agreed to purchase the property from Leanne Valerie Jones. A transfer from Jones to the Applicants was lodged in the office of the Registrar of Titles on 20 March 2012. [7] On 21 January 2012 the Applicants applied for a grant under the BBGA. [8] On 28 February 2012 the Respondent Commissioner (―the Commissioner‖) informed the Applicants that they were ineligible for any such grant. 1 QCAT Act ss 17-24. 2 BBGA s 3. 3 The definition of ―display home‖ is similar to that of ―home‖ in s 7, with the additional feature of being ―available for inspection to encourage persons to enter contracts to build similar buildings‖: BBGA Schedule 2, definition sub-clause (d). -- 2 of 5 -- 3 [9] The Applicants, aggrieved by that decision, lodged an objection under section 94 of the BBGA. Although the objection was out of time, the Commissioner granted an extension4 and submitted it to internal review.5 [10] By letter dated 28 September 2012 the Commissioner notified the Applicants that the decision to refuse their application was confirmed. [11] By application filed on 13 December 2012 the Applicants exercised their right to a review by the Tribunal.6 Any such application is to be made within 60 days after receiving notice of the decision. It is not contended that this application is out of time. [12] Section 12 of the BBGA provides that an applicant is entitled to receive a grant if the purchase for which it is sought is a completed eligible transaction, the applicant satisfies the eligibility criteria, and the application is properly made. [13] The Applicants submit that their purchase is an ―eligible transaction‖, in that their contract with the vendor is an ―eligible home purchase contract”.7 [14] Materially, section 14 of the BBGA provides that a contract is an eligible home purchase contract if it is for the purchase of a new home built, or to be built in Queensland.8 [15] To discover the meaning of ―new home‖ one visits section 8 of the Act, which materially states that it means ―a home that has not been previously occupied or transferred as a place of residence”.9 [16] A ―home” is defined in section 7 of the BBGA as follows: (1) A building is a home if— (a) it is designed, or approved by a local government, for human habitation by a single family unit; and (b) it is suitable for use, and lawfully able to be used, as a place of residence; and (c) it is used or intended to be used mainly for residential purposes; and (d) it is fixed to land; and (e) the land on which it is fixed is used or intended to be used— (i) mainly for residential purposes; or (ii) mainly for primary production and for residential purposes. (2) Despite subsection (1), if an application is made for a building boost grant for a transaction for which the first home owner grant is paid or payable, a home, in relation to the application, has the same meaning as in the First Home Owner Grant Act. 4 BBGA s 94(4). 5 BBGA s 95. 6 BBGA s 96. 7 BBGA s 6(1)(a). It is not suggested that the disqualifications in s 18 apply. 8 BBGA s 14(a). 9 BBGA s 8(1)(a). -- 3 of 5 -- 4 [17] However, subsection (3) of section 7 proceeds to override parts of subsection 7(1), above, effectively extending the meaning of ―home‖ for the purposes of the Act: Despite subsection (1)(c) and (e), a display home is also a home. [18] Accordingly a display home is a ―home” if it meets the criteria in section 7(1) (a), (b) and (d), despite the fact that it is not immediately used or intended to be used mainly for residential purposes, and despite the fact that the land on which it stands is not immediately used or intended to be used mainly for residential purposes.10 [19] The Commissioner’s view is that the subject property, as and when acquired by the Applicants, was not a ―new home‖ because it was previously occupied or transferred as a ―display home‖ and so, by the operation of sub-section 7(3), it is not a ―new home” within the meaning of section 8. That is to say, the objects and policy of the BBGA were satisfied before the Applicants acquired it, because the desired stimulus to the ―housing market” occurred when the property was transferred by Richards Projects Pty Ltd (―Richards‖) to Allan and Leanne Jones in August- September 2009. [20] In my opinion that analysis of the facts and interpretation of the Act is correct. By virtue of subsection 7(3), Richards transferred the property to the Joneses as a home. I respectfully agree with a point made by Ms Rogers in Craig v Commissioner of State Revenue Office of State Revenue11, namely, that the test of ―home” or ―place of residence” is not the subjective intention of the purchaser (or for that matter, of the vendor). The Act does not say ―purchased or sold as a home”. The proper test is an objective one12: What is the predominant character of the property transferred? Regardless of the intentions or plans of the parties, Parliament’s intended ―stimulus” of the ―housing market”, and employment in it are served when a home is built and first transferred. [21] If the opinion just expressed cannot stand alone, it is fortified by subsection 7(3), which simply disregards a non-residential use of a potential residence. [22] Authorities relied on by the Appellants include R v Jackson13 (a decision of a full court of the Supreme Court of South Australia) and Jackman v Commissioner of Land Tax14, a ruling of the Queensland Land Court. [23] The circumstances of R v Jackson are remote from the present case. The appellant in Jackson was convicted of ―serious criminal trespass in a place of residence”, contrary to section 170 of the Criminal Law Consolidation Act 1935 (SA). The appeal was rejected, despite Jackson’s contention that the locus in quo was not a residence, but only a place maintained by a charitable body for short-term accommodation of the more or less 10 BBGA s 7(3), referring to ss 7(1)(c) and (e). 11 Unreported, QCAT Member Rogers,16 May 2013. 12 Ibid at [11]. 13 (2005) 93 SASR 373; [2005] SASC 472. 14 [2010] QLC 3. -- 4 of 5 -- 5 deserving poor. However, the relevant legislation required more than the character of a residence. It demanded that the premises were actually ―used as a residence”.15 That condition was clearly satisfied in R v Bachra16 where the accused stole the resident’s clothing when the resident was on the premises. In Jackson Debelle J did suggest (without deciding) that the offence might not be committed if the premises were ―intended to be used as a place of residence but [had] not been occupied as such‖.17 [24] Be that as it may, the BBGA does not impose a precondition of residence. It suffices that the property is residential in character. That proposition is underlined in section 7(3). [25] In Jackman v Commissioner of Land Tax the Land Court had to be satisfied that the property was ―used as the [taxpayer’s] principal place of residence“.18 In view of the significantly different legislation involved in Jackman it does not assist us in this case. [26] If the foregoing reasons be not enough, note that the subject property was transferred not once, but twice, before acquisition by the Appellants.19 [27] It is clear, therefore, that the Applicants are not eligible for a grant under the BBGA. Their application must be dismissed, and the decision of the Commissioner confirmed. There will be orders accordingly. ORDERS 1. The application for review is dismissed. 2. The decision of the Respondent Commissioner is confirmed. 15 Criminal Law Consolidation Act 1935 (SA) s 170(3). 16 [2012] SASCFC 31. 17 (2005) 93 SASR 373; [2005] SASC 472 at [40]. 18 Land Tax Act 1915 (repealed) s.3E(1)(b). Similar legislation was involved in De Marco v Chief Commissioner of State Revenue [2013] ATC 20-385; [2013] NSWCA 86. 19 See paragraph [5], above. -- 5 of 5 --