Gundachar v Commissioner of State Revenue
[2016] QCAT 479
•12 December 2016
CITATION: | Gundachar v Commissioner of State Revenue [2016] QCAT 479 |
PARTIES: | Jayasimha Gundachar |
| v | |
| Commissioner of State Revenue (Respondent) | |
APPLICATION NUMBER: | GAR082-15 |
MATTER TYPE: | General administrative review matters |
HEARING DATE: | 9 February 2016 |
HEARD AT: | Brisbane |
DECISION OF: | Member J Allen |
DELIVERED ON: | 12 December 2016 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The decision of the Commissioner of State Revenue is set aside. 2. The Commissioner of State Revenue must pay Jayasimha Gundachar and Jyothi Jayasimha the building boost grant in respect of the contract for the purchase of lot 220 Varsity Parade, Varsity Lakes described as lot 200 on SP 246290 title reference 5090560. |
CATCHWORDS: | ADMINISTRATIVE LAW – GENERAL ADMINISTRATIVE REVIEW - Building Boost Grant – whether building work started on or before 1 May 2013 – whether operative date is commencement of actual building work or of plans for the building work. Building Boost Grant Act 2011 (Qld) s 6, s 7, s 8, s 12, s 14, s21, s 96 and s 97 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s17-24 |
APPEARANCES: | |
APPLICANT: | Mr Jayasimha Gunachar |
RESPONDENT: | Commissioner of State Revenue |
REPRESENTATIVES: | |
APPLICANT: | Mr Jayasimha Gundachar, self-represented |
RESPONDENT: | Commissioner of State Revenue represented by Mr Angus Scott |
REASONS FOR DECISION
Mr Gundachar purchased a unit off the plan at the Edgewater Development. He made application to the Commissioner of State Revenue for the Building Boost grant and the application was refused.
Mr Gundachar has now made application to the Tribunal to review the Commissioner’s decision[1].
[1]BBG Act s 96 and QCAT Act s 17.
The Tribunal when reviewing the decision does so in accordance with the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) and the Building Boost Grant Act 2011 (BBG Act). The Tribunal must hear and decide the review by way of a reconsideration of the evidence before the Commissioner when the decision was made, unless it considers it necessary in the interests of justice to allow new evidence[2]. The Tribunal must decide the review under the same law that applied to the original decision[3]. Effectively the Tribunal stands in the shoes of the decision-maker in determining the review application. The grounds on which the application for review is made is limited to the grounds of the relevant objection unless the tribunal otherwise orders[4].
[2]BBG Act s 97(2).
[3]Ibid.
[4]BBG Act s 97(3).
The role of the Commissioner is to assist the Tribunal to make the correct and preferable decision[5]. In making its decision, the Tribunal may confirm or amend the decision; set aside the decision and substitute its own decision or return the matter for reconsideration by the decision-maker[6].
[5]QCAT Act s 21.
[6]QCAT Act s 24.
The Legislation
The Building Boost Grant[7] was payable to eligible applicants[8] in respect of eligible transactions[9]. An eligible transaction was one for the purchase of a new home; the entering into of a contract to have a new home built or building a home as an owner builder. There were specific eligibility requirements set out in the BBG Act about these transactions.
[7]BBG Act s 12.
[8]BBG Act s 21.
[9]BBG Act s 6.
In this case Mr Gundachar and Jyothi Jayasimha have purchased a unit off the plan and filled in those parts of the Building Boost Grant application form in respect of a home purchase contract[10] in respect of the property at lot 220 Varsity Parade, Varsity Lakes described as lot 200 on SP 246290 title reference 5090560.
[10]Statement of Reasons p 30.
The requirements for an eligible home purchase contract are set out in s14 of the BBG Act. There are several requirements concerning dates. Firstly, the transaction commencement day, which is the day the contract is made[11], is on or after 1 August 2011 and before 1 May 2012[12]. Mr Gundachar’s contract for the purchase of the unit was signed on 27 April 2012[13] and so this requirement is met.
[11]BBG Act s 13(a).
[12]BBG Act s 14(b).
[13]Statement of reasons p 40.
Secondly, for a contract to purchase a new home on a proposed lot on an unregistered plan of subdivision of land where the contract does not provide otherwise, the contract is eligible if the building work under the contract is started before 1 May 2013 and completed before 1 May 2015 or within a longer period allowed by the Commissioner[14].
[14]BBG Act s 14(f)(ii)(A).
There is no definition of building work in the BBG Act. The Commissioner notes that “Building” is defined to include part of a building[15]. The Commissioner submits that building work means in the context of s14 (f) (ii) the exertion of labour directed to produce or construct a building or any part of a building by assembling or combining parts. This is in accordance with the definitions contained in the online Macquarie Dictionary.
[15]BBG Act Schedule Dictionary.
[10]The Commissioner notes that the building work specified under s14 (f) (ii) is “the building work under the contract” and that “contract” is defined in the BBG Act to mean a written contract.
[11]In this case, the contract is for the purchase by Mr Gundachar and Jyothi Jayasimha from Pearls Edgewater Pty ltd of lot 220 in Stage 2B of Edgewater residences in accordance with item 8 and clause 5 of the contract. Clause 9 of the contract deals with the completion of the lot. It is to be generally in accordance with the plan and to contain the finishes and chattels specified in schedule 3[16]. The plan shows that lot 220 is part of a freestanding building[17]. The seller may undertake the development in stages in accordance with clause 30 of the contract[18].
[16]Statement of Reasons p 48.
[17]Statement of Reasons p74.
[18]Statement of Reasons p 74.
[12]The Commissioner in her submissions relied on her reasons for decisions. Those reasons accepted that the phrase ‘building work under the contract’ would be broad enough to capture such works required to be built under schedule 3 to the contract[19].
[19]Statement of Reasons p 6.
[13]Mr Gundachar did not assert that the lot was completed at the time he signed the contract and I am satisfied that s14 (f) of the BBG Act applies.
[14]The question for determination here is whether the building work under the contract started prior to 1 May 2013.
[15]Mr Gundachar has provided evidence in regard to the commencement of work in respect of the development as a whole and he submits that the relevant date is the date that work started in regard to the development. Some of this evidence is new evidence and the Tribunal may admit such evidence if it is in the interests of justice to do so. Mr Gundachar states that he had difficulty obtaining the evidence and the Commissioner supports the admission of the evidence. The new evidence includes a contract dated 31 October 2012 between Pearls Unit Trust and Condev Constructions Pty Ltd; a Condev Constructions tender document and a Park Trent Property Update.
[16]I am satisfied that to ensure Mr Gundachar has had the best opportunity to present his case the new evidence should be admitted.
[17]Following the making of his application Mr Gundachar was requested to provide a copy of the form 16 for the laying of foundations[20]. A form 16 in respect of certification of “excavate footings, install formwork. Supply and placement of reinforcement. Supply, placing, vibrating levelling and finishing of concrete” dated 11 September 2013 was provided[21].
[20]Statement of Reasons p 14.
[21]Statement of Reasons p 32.
[18]Mr Gundachar’s application was refused because the Commissioner determined on the available evidence, a form 16 dated 24 September 2013 that the building work did not commence until after 1 May 2013. Mr Gundachar provided further material with his objection to provide that the building work commenced prior to 1 May 2013. This included a company profile for Condev Constructions Pty Ltd, which mentioned the Edgewater project showing work in 2013 and 2014[22]. Edgewater Stage 2 is noted as a current project with contract period August 2013 to August 2014.
[22]Statement of reasons p 104 to 108.
[19]In his objection, he stated that the builder had provided a spreadsheet to show how the construction has started 22 October 2012. There is a document identified as Edgewater residences Stage 1 which shows “start on site 22 October 2012”[23].
[23]Statement of reasons p 121 to 127.
[20]Mr Gundachar filed the front page of an agreement between The Trustee for pearls Edgewater Unit Trust and Condev Construction Pty ltd dated 31 October 2012 for the staged civil and construction works of the Edgewater Residences. He also provided a copy of the Edgewater tender by Condev, which indicated that contract signing, would be 5 October 2012 and start date 22 October 2012. This document only refers to Stage 1A and 1B of the development .
[21]There is also a document register from Alliance Design Group (ADG) Consulting engineers for Edgewater Development–Stage 2, which shows dates commencing on 21 December 2012. This document on its face relates to plans prepared by ADG for Edgewater Development – Stage 2 for the footings and various slabs in respect of the building. There is also a form 16 signed by a representative of ADG showing that footings were inspected on 24 September 2013.
[22]Mr Gundachar also produced a copy of the Park Trent Properties Group August 2013 Newsletter, at the hearing. This document had photos dated July 2013 of various buildings and their interiors. It indicated on page 1 that Edgewater stage 2 apartments (lots 201 to 230) were settling April/ May 2013. The Commissioner did not argue that this new evidence should not be received. I consider that it is in the interests of justice to allow this new evidence to ensure that Mr Gundachar has had the best opportunity to present his case.
[23]Mr Gundachar submits that the building work to be considered in terms of s14(f) of the BBG Act is that which relates to the whole of the Edgewater development and so he has provided evidence as to when the Edgewater development as a whole commenced which was on or around 22 October 2012.
[24]There is also the evidence in regard to the plans for the building in which Mr Gundachar’s lot was located which he says show that work started on 22 December 2012. The Commissioner notes that the document register shows documents relating to stage 2 had been prepared for information by 21 December 2012; for tender by 13 February 2013 and for construction by 29 July 2013. The Commissioner submits that the ADG Document Register shows that the construction plans were not finalised until 29 July 2013 and that this suggests construction started on or about 29 July 2013 at the earliest.
[25]The Commissioner submits that the relevant date is that which relates to the commencement of work in respect of the building of which Mr Gundachar’s lot forms part. The Commissioner submits the evidence in that regard is the form 16 in respect of the footings, which show that they were inspected at the earliest on 11 September 2013.
[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.
[28]The material which relates to the building of which Mr Gundachar’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[24]. The Commissioner has accepted 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.
[24]Statement of reasons p 82.
[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 Mr Gundachar on 1 July 2014 and so that requirement is also satisfied.
[32]The other requirements of s14 of the BBG Act in regard to a home purchase contract are as follows:
a) that it is for the purchase of a new home in the State[25]. I am satisfied that the contract is for the purchase of a new residential apartment having regard to the schedule of finishes and chattels[26] and that s14 (a) is satisfied.
[25]BBG Act s 14(a); s 7 and 8 in regard to definition of new home.
[26]Statement of Reasons p 81 to 83.
b) Relevantly, it is for the acquisition of a relevant interest in the land on which the home is to be built[27]. I am satisfied that the contract is for the purchase of a relevant interest in lot 220 in accordance with clause 5 of the contract.
[27]BBG Act s 14(c)(ii).
c) It has been entered into by each person who on completion of the contract will have a relevant interest in the land[28]. The contract was entered by Jayasimha Hossur Gundachar and Jyothi Jayasimha as buyers[29]. The title to lot 220 was registered in the same names[30]. I am satisfied that this requirement has been met.
[28]BBG Act s 14(d).
[29]Statement of Reasons p 40.
[30]Statement of Reasons p 87.
d) The total of the following is less than $600,000 the unencumbered value of the home the unencumbered value of the relevant interest in the residential land at the transaction commencement day for the contract[31]. Item 9 of the contract shows the purchase price as $409,500.[32] I am satisfied that this requirement has been met.
[31]BBG Act s 14(e).
[32]Statement of Reasons p 41.
[33]I am satisfied that all of the requirements of s14 of the BBG Act have been met in regard to Mr Gundachar’s contract for the purchase of lot 220 and that the contract is an eligible home purchase contract which has been completed.
[34]Therefore, Mr Gundachar and Jyothi Jayasimha are entitled to be paid the building boost grant in respect of the purchase of lot 220 in the Edgewater Development as an eligible home purchase contract, which has been completed.
[35]The order of the Tribunal is that the decision of the Commissioner is set aside and Jayasimha Gundachar and Jyothi Jayasimha are entitled to payment of the building boost grant in respect of the contract for the purchase of lot 220 Varsity Parade, Varsity Lakes described as lot 200 on SP 246290 title reference 5090560.
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