Gundachar v Commissioner of State Revenue
[2018] QCAT 189
•25 June 2018
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Gundachar v Commissioner of State Revenue [2018] QCAT 189
PARTIES:
JAYASIMHA GUNDACHAR
(applicant)v COMMISSIONER OF STATE REVENUE
(respondent)
APPLICATION NO/S:
GAR082-15
MATTER TYPE:
General administrative review matters
DELIVERED ON:
25 June 2018
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Member Allen
ORDERS:
The decision of the Commissioner of State Revenue is confirmed.
CATCHWORDS:
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – review of a decision by the Commissioner of State Revenue under the Building Boost GrantAct 2011 (Qld) – where off the plan contract in respect of a staged development – where building work in respect of early stages started before 1 May 2013 – what constitutes building work for purpose of Act – whether building work under the contract started before
1 May 2013Building Boost Grant Act 2011 (Qld), s 6, s 12, s 14
Queensland Civil and Administrative TribunalAct 2009 (Qld), s 146(c)
Commissioner of State Revenue v Gundachar [2017] QCATA 79
REPRESENTATION:
Applicant:
Self-represented
Respondent:
A D Scott, instructed by the Commissioner of State Revenue
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
Introduction
Mr Gundachar made application to the Commissioner for the Building Boost Grant, under the Building Boost Grant Act 2011 (Qld) (‘BGGA’) in respect of an off the plan purchase of a unit. For the application to be successful, the building work in respect of the contract was required to be commenced prior to May 2013.[1] The Commissioner determined that the application was not eligible for the grant as the building work did not commence prior to that date. Mr Gundachar objected to the decision and the decision was upheld and the objection disallowed.
[1]BBGA, s 14(f)(ii)(A).
An application for review was made by Mr Gundachar and I determined that the Commissioner’s decision should be set aside and the grant paid to Mr Gundachar. This was on the basis that building work included the preparation of the building plans and I was satisfied that on that basis the building work commenced prior to 1 May 2013 as the plans had been drafted on 22 December 2012.
The Appeal
The Commissioner appealed that decision and the appeal was upheld by the Appeals Tribunal. Member Lumb in his decision noted that: ‘there is no challenge by the Commissioner to the factual findings made by the member.’[2] Following consideration of the parties submissions and consideration of the legislation, Member Lumb held:[3]
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.
[2]Commissioner of State Revenue v Gundachar [2017] QCATA 79, [14].
[3]Ibid [59].
Member Lumb, having allowed the appeal, directed that ‘the matter is returned to the Tribunal for reconsideration according to law.’[4] That is, determining the question whether the building work, being the physical building work, under the contract, was started before 1 May 2013 in accordance with s 14(f)(ii)(A) of the BBGA. Member Lumb stated:[5]
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.
[4]Ibid [76].
[5]Ibid [75].
Member Lumb referred to Stage 2B above as he had confirmed my finding that the building work in question related to that in regard to Stage 2B of the Edgewater Development.[6]
[6]Ibid [72].
My task then, is to:
(a)reconsider the evidence and submissions that were made to me having regard to the correct interpretation of the term ‘building work’ as physical building work; and
(b)
to determine whether the building work in respect of Stage 2B of the Edgewater Development commenced before 1 May 2013 to satisfy the requirements of
s 14(f)(ii)(A) of the BBGA.
Mr Gundachar’s submissions
Mr Gundachar stated in his application to review that the construction start date was 22 October 2012. He provided a copy of Formal Instrument of Agreement dated
31 October 2012 between The Trustee for Pearls Edgewater Unit Trust, as Principal and Condev Construction Pty Ltd, as Contractor in regard to Stage 1A and 1B showing a start date of 22 October 2012, which having regard to the finding that the work must be in regard to Stage 2B of the development is not relevant.
Mr Gundachar also provided a copy of the Edgewater Residences Stage 1 chart of site works. While this showed that works had commenced in regard to the Edgewater Residences Stage 1 as at 22 October 2012, it did not have any particulars in regard to work in relation to Stage 2B which relates to building work in respect of the lot purchased under the contract entered by Mr Gundachar.
There was also the Form 16 Inspection Certificate signed by ADG Engineers (Aust) Pty Ltd in respect of Building B. This shows the first inspection occurred on
24 September 2013 in respect of the Building B footings. Attached to this was the Document Register from ADG which was in regard to Stage 2 Building B, which shows that the plans for the footing and slab were prepared on 21 December 2012. The date of preparations of the plans though is not relevant as it does not relate to the physical building work as required by the definition of building work for the purpose of the BBGA.
The contract for the purchase of Mr Gundachar’s lot is dated 27 April 2012 and is headed Edgewater Residences Stage 2B.[7] The contract is, in accordance with item 8 and the relevant definitions, for the purchase of lot 220 as shown on the draft building format plan in schedule 1 to the contract. Clause 30 of the contract notes that the development, the proposed Community Title Residential Development to be constructed on the land, may be undertaken in stages and that the seller may not proceed with one or more stages in the development The plan in schedule 1 is a building format plan and shows a building with various levels to be constructed on a particular parcel of land, with lot 220 clearly shown.[8]
[7]Statement of Reasons (‘SOR’), p 40.
[8]Ibid 74.
Mr Gundachar provided a copy of the form 16 Inspection certificate for concrete works in respect of the building at 29/49 Varsity Lake described as lot 124 on SP206406 and lot 125 on SP 206406 which was dated 11 September 2013.[9] This coincides with the Form 16 from ADG in that the work was performed and inspected in September 2013.
[9]Ibid 31, 32.
He also supplied a copy of the certificate of classification for the building which is dated 12 June 2014.[10] The certificate of classification is issued at the conclusion of the building process. I note in accordance with the certificate of title in respect of
lot 220, that Mr Gundachar and Ms Jayasimha, his co-owner, were registered as owners of lot 220 on 1 July 2014.[11]
[10]Ibid 88.
[11]Ibid 87.
Mr Gundachar submitted a copy of the 2014 Company Profile for Condev Construction Pty Ltd,[12] which listed current projects to include Edgewater Stage 2 with contract period August 2013 to August 2014. There was also a Courier Mail article dated 8 December 2012 in regard to the Edgewater Development, which stated the second building, presumed to Stage 2B, is 85% sold out.[13]
[12]Ibid 104.
[13]Ibid 108.
There were also photos in respect of buildings on land identified as 29/49 Varsity Parade which show several completed buildings as at 18 August 2014, with a line indicating that lot 220 forms part of one of the building.[14] There is an earlier photo dated 17 March 2013 which shows several part-completed buildings,[15] and one from 16 December 2012 showing site works have commenced,[16] when compared to earlier photos from 20 September 2012,[17] and 13 May 2012.[18]
[14]Ibid 110.
[15]Ibid 111.
[16]Ibid 112.
[17]Ibid 113.
[18]Ibid 114.
Mr Gundachar also provided a property update for Edgewater Residences dated August 2013 and though this showed photos of building work there are no descriptions in regard to the building work and it is stated that Stage 2 Apartments Lots 201 to 230 will be settling April/May 2014.
The Commissioner’s submissions
The Commissioner submitted that the material which does not specifically relate to the construction of Stage 2B is not relevant as it does not relate to the building work under the contract as required by s 14(f)(ii)(A) of the BBGA. That the plans provided by ADG Engineers were approved 29 July 2013 and that the concreting work for the building was performed on 11 September 2013 and the footings for Building B were inspected by the engineers ADG on 24 September 2013. That having regard to this the construction work started at the earliest on 29 July 2013 earliest when the plans were approved. I note that as the definition of building work does not include the plans then the date is therefore 11 September when the form 16 for the concreting works was approved.
Discussion
The definition of building work relates to the physical building work under the contract and the contract shows a plan for a building of which the lot purchased by Mr Gundachar forms part. It is therefore not sufficient to show when work commenced in regards to the Edgewater Residences as a whole as it was a staged development, and Stage 1 commenced prior to Stage 2B and related to a separate building in the development. The photos provided by Mr Gundachar clearly show separate buildings and the building of which his lot forms part only appears in the photo dated 18 August 2014.
The evidence which clearly shows when the physical building under the contract was done are those in the two Form 16s, which show that the footings were inspected on 11 September 2013 by the concreter and they were inspected by the engineers on
24 September 2013. I therefore accept the Commissioner’s submission in that regard.
It is a requirement that the building work under the contract is started before
1 May 2013 in accordance with s 14(f) (ii) (A) for Mr Gundachar’s home purchase contract to be an eligible home purchase contract and thus an eligible transaction for the Building Boost Grant.[19]
[19]BBGA, ss 6, 12.
Mr Gundachar’s contract is not an eligible home purchase and he is not entitled to the building boost grant.
The decision of the Commissioner is confirmed.
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