Ivens v Commissioner of State Revenue

[2014] QCAT 361

CITATION: Ivens v Commissioner of State Revenue [2014] QCAT 361

PARTIES:	Dale Susan Ivens (Applicant)
v
Commissioner of State Revenue (Respondent)

APPLICATION NUMBER: GAR426-13

MATTER TYPE: General administrative review matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Member Allen

DELIVERED ON: 29 July 2014

DELIVERED AT: Brisbane

ORDERS MADE:

1.   The Commissioner’s decision is confirmed.

CATCHWORDS:

APPLICATION FOR REVIEW – Building Boost Grant Act 2011 – application for grant for home building contract – whether eligible transaction –decision of respondent Commissioner confirmed

Building Boost Grant Act 2011 ss 6, 12, 13, 16, 18, 96, 97

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. Mrs Ivens made application to the Commissioner for the Building Boost Grant on 24 August 2012 in respect of a contract she had entered with her son, Clint Ivens, who was a registered builder.  The application states that the contract for the building of the house was dated 20 August 2012 with construction to commence on 1 October 2012 and to be completed by 1 April 2013.  According to a registration confirmation provided with the application Mrs Ivens was registered as the owner of the land on which the house was to be built on 19 July 2012.  Mrs Ivens was requested to lodge a new application as the initial one was incomplete and to provide further details in regard to the transaction as the builder was Mrs Iven’s son.  This was done on 12 September 2012.  Still further information was requested about the commercial nature of the transaction and the financing of the home.  Copies of the first and final inspection certificates for the construction and a valuation of the home were also requested. These were provided by letter dated 22 August 2013.

2. The Commissioner refused the application by letter dated 4 September 2013 on two grounds. Firstly, that s 14(b) of the Building Boost Grant Act 2011 (the Act) defines a home building contract to be eligible if the transaction commencement day is on or after 1 August 2011 and before 1 May 2012. The evidence supplied in office indicates that the home building contract was dated 20 August 2012. Consequently, the home purchase contract is not an eligible transaction. Secondly, under s 18(b) transactions that are not eligible transactions are contracts between the applicant and a related person of the applicant, the build contract was entered between Mrs Ivens and Clint Ivens (her son), therefore this application would be deemed to be a related party transaction, consequently the arrangement is not an eligible transaction under section 12 of the Act.

3. Mrs Ivens objected to the Commissioner’s decision by letter dated 26 September 2013.  The grounds were that if the application was too late why wasn’t she told earlier.  All of the Commissioner’s correspondence over several months led her to believe she had a legitimate chance of eventually receiving an ex-gratia payment of the grant.  That the information sheet indicated that if there was a good enough reason for a late application she should apply and the reason was that she had sold her townhouse on 16 April 2012 with a settlement on 10 July 2012 at the purchaser’s request.  Also if there was no chance of the application being successful because her son was the builder, why wasn’t this made clearer earlier.  She had never hidden this fact and she specifically asked if it was going to be a problem and was told to state her case.

4. The Commissioner disallowed the objection on 23 October 2013 and Mrs Ivens as mentioned has made an application to the Tribunal to review the decision[1].  The Tribunal must hear and decide the review of the objection decision by way of a reconsideration of the evidence before the Commissioner, when the decision was made and decision the review under the same law that applied to the making of the original decision[2]. The Tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits and the purpose of the review is to produce the correct and preferable decision[3].  The Tribunal may confirm or amend the decision, set aside the decision and substitute its own decision or set aside the decision and return the matter for reconsideration to the decision-maker[4].

   [1]Building Boost Grant Act 2011 (the Act) s 96.

   [2]Ibid s 97(2).

   [3]QCAT Act s 20.

   [4]Ibid s 24(1).

5. Mrs Ivens submitted in her application for review that she believed her application filled all of the requirements set out in the guidelines even though some aspects were out of her control that is the long settlement and the fact her son was the builder.  Also the ongoing correspondence between herself and the Commissioner led her to believe she had a good chance of successfully obtaining the grant.

6. An applicant for the building boost grant is entitled to be paid a building boost grant only if the transaction for which the grant is sought is an eligible transaction and has been completed, the applicant complies with the eligibility criteria under division 3 and the application for the grant is properly made[5].  An eligible transaction includes an eligible home building contract[6].  A home building contract is an eligible home building contract relevantly if the transaction commencement day is on or after 1 August 2011 and before 1 May 2012[7].  The transaction commencement day is for a home building contract the day the contract is made[8].  

   [5]The Act s 12.

   [6]Ibid s 6.

   [7]Ibid s 16(b).

   [8]Ibid s 13(a).

7. A transaction which otherwise would be an eligible transaction will not be in certain circumstances including where the transaction is between the applicant and a related person of the applicant, unless the first home owners grant is paid or payable[9].

   [9]Ibid ss 6(1) and 18(b).

8. In this case Mrs Ivens entered a home building contract on 20 August 2012.  That date is after the 1 May 2012 and therefore the home building contract is not an eligible home building contract and Mrs Ivens does not have an entitlement to the building boost grant.  As the transaction is not an eligible transaction having regard to the date the contract was entered there is no need to consider the effect of the builder being Mrs Iven’s son.

9. The Tribunal fully understands that the course of correspondence between the Commissioner and Mrs Ivens may have given her the impression that was apart from the question of the related party nature of the transaction had an entitlement.  And that she would have appreciated being told earlier that this was not the case.  Clearly it would be appropriate where there are such clear criteria of eligibility that applicants who are not eligible are informed of this fact as earlier as possible to save both themselves and the Commissioner from wasted effort.

10. The decision on objection was to disallow the objection against the refusal of the application.  As the Tribunal is satisfied Mrs Ivens has not entered an eligible home building contract the decision on objection is confirmed.