Mitchell v Commissioner of State Revenue - [2015] QCAT 183

CITATION:

Mitchell v Commissioner of State Revenue [2015] QCAT 183

PARTIES:	Meryl Diana Mitchell (Applicant)
v
Commissioner of State Revenue (Respondent)

APPLICATION NUMBER:

GAR177-14

MATTER TYPE:	General administrative review matters
HEARING DATE:	8 October 2014

HEARD AT:

Brisbane

DECISION OF:

Member Allen

DELIVERED ON:

28 May 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The decision of the Commissioner is affirmed

CATCHWORDS:

GENERAL ADMINISTRATIVE REVIEW – Building Boost Grant – Contract entered during eligibility period – contract rescinded – new contract entered in regard to the same property with an additional party – whether transaction commencement day is the day the first contract was entered.

Building Boost Grant Act 2011 (Qld) ss 6, 12, 13, 14, 96, 97

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 19, 21 and 24

APPEARANCES:

APPLICANT:

Ms Mitchell appeared for herself

RESPONDENT:

Mr Kwong appeared for the Commissioner of State Revenue

REASONS FOR DECISION

Ms Mitchell made an application to the Commissioner for the Building Boost Grant in respect of an off the plan unit purchase, with the contract date of 19 October 2011. At the time, she owned a house in Maleny which she would need to sell before the settlement of the purchase of her unit. Due to problems selling her house Ms Mitchell needed to obtain bridging finance in respect of the unit purchase. Ms Mitchell’s son, Stuart was prepared to guarantee the loan the financier required that Stuart become an owner of the unit. Ms Mitchell then rescinded the original contract by deed on 11 October 2013 and entered a new contract with the unit developer in the name of herself and her son with him owing a 1% interest in the unit on the same day.
Ms Mitchell had given notice of her intention to claim the Grant on 24 July 2012 and had received an acknowledgment of this notice from the Commissioner on 8 August 2012. Ms Mitchell and her son applied for the Grant on 11 November 2013. The Commissioner refused the application for the Grant on 8 January 2014. Ms Mitchell objected to that decision and Commissioner upheld the original decision on 28 March 2014. Ms Mitchell has applied to the Tribunal to review the objection decision.
Ms Mitchell’s grounds were stated to be that the transaction was followed through to a completed transaction in the period required. That everything done during the transaction was done to allow it to be completed. The successfully completed transaction fulfilled the requirements of the Building Boost Grant Act 2011.
An applicant who is dissatisfied with an objection decision may apply to the Tribunal for review of that decision.[1] The grounds on which the application for review are made are limited to the grounds of the relevant objection unless the Tribunal otherwise orders[2].The Tribunal must hear and determine the review under the same law that applied to the making of the original decision and by way of reconsideration of the evidence before the Commissioner when the decision was made, unless the Tribunal considers it in the interests of justice to allow new evidence[3]. The Tribunal then stands in the shoes of the Commissioner to remake the decision. The purpose of the review is to produce the correct and preferable decision[4] and the Tribunal may confirm or amend the decision, set aside the decision and substitute its own decision; or set the decision aside and return it to the decision-maker for reconsideration[5]. The Commissioner is required to help the Tribunal to make its decision including by way of providing copies of written statement of reasons for her decisions and any document or thing in her possession or control that may be relevant to the review[6]
[1]          Building Boost Grant Act 2011 (Qld) s 96.
[2]          Building Boost Grant Act 2011 (Qld) s 97(3).
[3]          Building Boost Grant Act 2011 (Qld) s 97(2).
[4]          Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 19.
[5]          Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 24.
[6]          Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 21.
The ground set out in the objection was that the first contract and second contract are one and the same transaction. The first contract was rescinded only due to the circumstance of Ms Mitchell not having sold her house before the unit purchase settlement was required and the need to have Ms Mitchell’s son, Stuart noted on the title. There was concern about amending the first contract to include Mr Mitchell risking additional transfer duty and so the second contract was entered after the first was rescinded.
The copies of the evidence which was provided by the Commissioner included the following:-
a)    Contract dated 19 October 2011 between Australand North Shore Pty Ltd, as seller and Meryl Diana Mitchell, as buyer for the purchase of proposed lot 2501 for the amount of $405,000.00 with a total deposit of $40,500.00 with settlement date being the date determined in accordance with clause 13.1;
b)    Deed of rescission dated 11 October 2013 between Australand North Shore Pty Ltd, as seller and Meryl Diana Mitchell, as buyer in respect of the contract dated 19 October 2011 in respect of lot 2501;
c)    Contract dated 11 October 2013 between Australand North Shore Pty Ltd, as seller and Meryl Diana Mitchell and Stuart Brian Mitchell, as buyers in respect of unit 2501, Watermarque for the amount of $405,000.00 with a total deposit of $40,500.00. with settlement date being 17 October 2013; and
d)    Building Boost Grant application form applicants Meryl Diana Mitchell and Stuart Brian Mitchell made on 11 November 2013. The contract date listed in the application was listed as 19 October 2011 with construction commencing on 1 March 2012 and completed on 12 August 2013.
The Building Boost Grant Act defines an eligible transaction relevantly is an eligible home purchase contract[7]. An applicant for a Grant is entitled to be paid the grant only if the transaction for which the grant is sought is an eligible transaction, which has been completed[8]. An eligible home purchase contract is one for the purchase of a new home that, is or is to be built on land in Queensland and the transaction commencement date is on or after 1 August 2011 and before 1 May 2012[9]. The transaction commencement day is, for a home purchase contract, the date the contract is made[10].
[7]          Building Boost Grant Act 2011 (Qld) ss 6(1)(a).
[8]          Building Boost Grant Act 2011 (Qld) ss 12(a).
[9]          Building Boost Grant Act 2011 (Qld) s 14.
[10]        Building Boost Grant Act 2011 (Qld) ss 13(a).
The Commissioner submitted that as the second contract was entered outside of the period for eligible home purchase contracts it was not an eligible contract and Mrs Mitchell was not entitled to the grant.
While the first and second contracts are in respect of the same property that is lot 2501 and have the same purchase price, the purchasers are not the same and the date for settlement is a certain date in the second contract. While the first contract could have been varied by the addition of Mr Stuart Mitchell as a purchaser, this did not occur, as there was a concern that may result in additional transfer duty.
The effect of the deed of rescission was to terminate the first contract subject to the entry by the parties into the second contract. They are both independent contracts, as the second does not operate to vary the first. In accordance with the deed of rescission upon entry by the parties into the second contract the first contract was rescinded and the parties released each other from their obligations under the first contract. The first contract was then at an end.
The Tribunal is satisfied that the contract under which Ms Mitchell and Stuart Mitchell purchased the unit was the second contract dated 11 October 2013. That transaction is then not an eligible transaction as the contract was entered outside of the eligibility period.
The decision of the Commissioner is affirmed.