Rudolf Schoensleben-Vogt v Commissioner of State Revenue - [2023] QCAT 160

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Rudolf Schoensleben-Vogt & Anor v Commissioner of State Revenue [2023] QCAT 160

PARTIES:

RUDOLF SCHOENSLEBEN-VOGT
SUSANNE MYRTA SCHOENSLEBEN-VOGT

(applicants)

v

COMMISSIONER OF STATE REVENUE

(respondent)

APPLICATION NO/S:

GAR446-21

MATTER TYPE:

General administrative review matters

DELIVERED ON:

8 May 2023

HEARING DATE:

4 October 2022

HEARD AT:

Brisbane

DECISION OF:

Member Carrigan

ORDERS:

The Tribunal orders that the decision of the Commissioner of State Revenue made on 16 June 2021 is confirmed.

CATCHWORDS:

GENERAL ADMINISTRATIVE REVIEW – FIRST HOME OWNER GRANT – whether verbal contract with builder was compliant – where homeowner would exceed $150,000.00 – where verbal contract for “time and materials" was entered into – where construction commenced before entering into a written contract with their builder.

First Home Owner Grant and Other Home Owner Grants Act 2000 (Qld) s 25Q(2), s 60(2)(a), s 60(2)(b), s 60(3),
s 60(5) and Schedule for definition of “home builder direction”

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20, s 24

Rosecove Pty ltd v Queensland Building and Construction Commission & Anor (2023) QCAT 101

APPEARANCES & REPRESENTATION:

Applicant:

Self represented

Respondent:

Catherine Chiang of Counsel instructed by the Commissioner of State Revenue.

REASONS FOR DECISION

On 16 June 2021 the Delegate of the Commissioner for State Revenue (Commissioner) notified Rudolf Schoensleben-Vogt and Susanne Myrta Schoensleben-Vogt (“Applicants”) that their application for a HomeBuilder Grant of $25,000.00 was refused.
The basis of the Commissioner’s refusal was that the application for the grant was not an eligible home builder transaction because construction had commenced on a date prior to the date the Applicants entered into a contract with a Builder to renovate their home.
On 19 July 2021 the Applicants filed in the Tribunal an Application to review a decision made by the Commissioner on 16 June 2021 (the proceedings).

Background Facts.

On 2 December 2019 the Applicants entered into a contract for the purchase of residential property at 6 Gibson Avenue, Maleny in the State of Queensland. The purchase price was $625,000.00.
On 10 January 2020 they settled the contract for the purchase of that residential property by payment of the purchase price.
By 16 January 2020 the Titles Office registered the Applicants as the registered proprietors of the property at 6 Gibson Avenue, Maleny.
In February 2020 the Applicants commenced discussions with an Architect and a Builder, Ross Meneely of RBMEN Pty Ltd, for renovations to their 30 year old home. At that time the budget for those renovations was approximately $80,000.00.
On 4 June 2020 a HomeBuilder Grant of $25,000.00 was announced by the Australian Government and was available to eligible owner-occupiers to construct a new home or substantially renovate an existing home for contracts entered into between 4 June 2020 and 31 December 2020.[1]
[1]This date was subsequently changed to 31 March, 2021.
In June 2020 the Builder informed the Applicants said he would have to lay off staff because some other projects had been pushed back or even cancelled. At that time the Applicants’ renovations were still in the quoting phase.
On 7 June 2020 the Applicants gave the Builder authority to proceed with the renovations. The Applicants state;
At that stage a contract with real figures was not possible. But because we had already worked with Ross Meneely for a few months we trusted him and his management skills and that he would do the renovations properly.
On 2 July 2020 the Treasurer for the State of Queensland, the Honourable Cameron Dick MP, signed the National Partnership Agreement (NPA) for the HomeBuilder Grant. This Agreement was to give effect to the arrangements between the Commonwealth and the State and Territory Governments whereby the Commonwealth would fund the Grants in arrears made by the States and Territories to eligible owner-occupiers. The NPA also provided that where an owner-occupier recipient is later found to be ineligible for the HomeBuilder Grant, the State or Territory will repay the Commonwealth any funding recovered.[2] Schedule A to the NPA provided for various terms, conditions, eligibility criteria and relevant principles for the Grant. Specifically it provided that a grant of $25,000 would be made to an eligible owner-occupier to build a new home or substantially renovate an existing home.
[2]National Partnership Agreement clause 28.
On about 7 July 2020 the Applicants met with the Builder to discuss the scope of works for the renovations.[3]
[3]See Exhibit 7 at page 89 – 90.
On 13 July 2020 the Builder commenced work on the renovations to the Applicants home. At this time there was no written contract, rather there was an oral agreement between the Applicants and the Builder.
The Applicants also state that as the renovations proceeded it became clear that the renovation costs would exceed the initial budget. At some stage it was decided by the Applicants that as the renovation costs would be in the vicinity of $120,000.00 they then decided as follows;
Spending an extra $30,000.00 to replace the windows would bring the total amount of the renovation above $150,000.00 as this was the limit for the Home Builder Grant we decided to apply for it. We gave the go-ahead for the extra $30,000.00 in work, a sum we would otherwise would not have spent.
The evidence did not establish the date or the timing when renovation costs would be closer to $120,000.00 nor did it establish the date on which it was decided to spend the extra $30,000 or when they decided to apply for the HomeBuilder Grant.
The Applicants state that by 30 July 2020 the builder, plumber and electrician, and local businesses, were already renovating their home.
On 30 July 2020 the Australian Government Treasurer and the Minister for Infrastructure and Planning approved an Administrative Direction (Australian Government HomeBuilder Grant – Queensland) to establish the basis for the administration of the Grant. That Administrative Direction set out the eligibility criteria for applicants and other arrangements for obtaining a grant and so far as is relevant in these provision proceedings clause 1.c provided that an eligible transaction for a grant is;
a substantial renovation contract made by the freehold owner of a home in Queensland if the contract commencement date is between 4 June 2020 and 31 March 2021 (both dates inclusive), and the construction commencement date is on or after the contract commencement date and within six months of the contract commencement date.
On 12 August 2020 the Builder sent to the Applicants its “Tax Invoice 1” for $45,000.00 relating to alterations to the existing residence as per plans drawn by Norman Richards and altered by the Applicants. The amount of this Invoice correspondence with the deposit of $8000 and progress claim 1 of $37000 which is to be found in the subsequent written construction contract dated 7 October 2020.
On 20 August 2020 amendments were made to the First Home Owner Grant and Other Home Owner Grants 2000 (Qld) (FHOG Act) to insert Part 3B and other provisions. Part 3B contain the provisions for the HomeBuilder Grant including the eligibility provisions in s 25Q which provided;
(1) A person who is eligible to apply for a home builder grant under the home builder direction may apply for the grant.
(2) An application for a home builder grant must comply with the builder direction.
(3) An applicant for a home builder grant is entitled to be paid the grant if –
(a)     the applicant or, for a joint application, each of the applicants, complies with the eligibility criteria for the grant under the home builder direction; and
(b)     the transaction for which the grant is sought is an eligible home builder transactions; and
(c)     the relevant requirements in relation to the eligible homebuilder transaction have been met.
The Dictionary in the Schedule to the FHOG Act defines the term “home builder direction” as meaning the Administrative Direction made by the relevant Minister and called “Australian Government HomeBuilder Grant – Queensland.”
On 7 October 2020 the Builder sent to the Applicants its “Tax Invoice 2” for $50,000.00 relating to alterations to existing residence as per plan drawn by Norman Richard’s and altered by the Applicants. The amount of this Invoice corresponds with Progress Payment 2 in the written contract between the parties made on 7 October 2020.
On 7 October 2020 the Applicants and the Builder entered into a Master Builders Queensland “Basic Works Contract Residential” for $163,000.00 to carry out building work in accordance with the Contractor’s Scope of Works/Quotation. The contract provided in Item 6 that the date of commencement of the works was 13 July 2020.
That contract provided for progress payments which included the following;
(a)Deposit  $8,000.00
(b)Progress Payment 1        $37,000.00
(c)Progress Payment 2        $50,000.00
The Applicants explanation for leaving the entry into the Contract with the Builder until October 2020 was:[4]
The reason why the building contract has a later date and the commencement of the renovation is that we did not expect to spend so much money on it.
Once it became obvious that the house needed more work to be done (replace all water and power) we exceeded the budget.
We reached the amount required for the grant and asked for a formal contract form (from) the builder. As this contract is created online that date could not be adjusted to fit the commencement date of the renovation.
[4]See Exhibit 7 at page 73.
The Master Builders contract between the parties is signed and dated 7 October 2020.
On 1 December 2020 the Commissioner received an Online HomeBuilder Application for a grant of $25,000 from the Applicants. In that Application they stated[5]
(a)the date the renovation contract was signed                   7 October 2020;
(b)the total value of the renovation contract  $163,000.00;
(c)the date construction commenced  13 July 2020;
(d)The Builders name  RBMEN Pty Ltd.
[5]See Exhibit 7 at pages 38 – 41.
In an email dated 4 March 2021 the Applicants responded to a number of questions from the Commissioner in which they stated;[6]
Regarding your questions re more clarification for the works that commenced on 13 July 2020; the contract price of $163,000 cover all works from the construction commencement date to the end.
We did not sign any agreement. It was all agreed on in meetings and sometimes by emails.
[6]See Exhibit 7 at page 44.
On 25 May 2021 the Commissioner informed the Applicants that their application for a HomeBuilder Grant had been considered and based on information provided the Applicants had not satisfied paragraphs 1.c and 11.b of the Administrative Direction. The Commissioner confirmed that the Applicants were not entitled to receive the Grant.
On 25 May 2021 the Applicants informed the Commissioner that they objected to the decision to reject their application for a HomeBuilder Grant. They specified a number of grounds for that objection (the details of which will be referred to later) but relied on a verbal contract with a builder as well as other grounds.
On 16 June 2021 the Commissioner informed the Applicants that their objection of 25 May 2021 had been referred to the Review and Dispute Resolution Division for consideration who had decided to confirm the decision to refuse payment of the Grant. The Commissioner’s informed them that this further refusal was because their application for the grant was not an eligible HomeBuilder transaction because construction commencement date was prior to the contract date.
On 19 July 2021 the Applicants filed in the Tribunal an Application to review the decision of the delegate of the Commissioner made on 16 June 2021.

The Application is made in the Review Jurisdiction of the Tribunal.

On 4 October 2022 the Tribunal conducted the hearing of the Application to review the decision made on 16 June 2021. The relevant evidence relied upon was the various facts and circumstances which have already been set out in the “Background Facts”. There was additional evidence relied upon the Applicants being a further statement,[7] a bundle of documents[8] and a joint statement of the Applicants.[9] The Commissioner also relied on some short additional evidence.[10]
[7]See Exhibit 3.
[8]See Exhibit 4.
[9]See Exhibit 5.
[10]See Exhibit 8.
The Tribunal is required to review the decision made on 16 June, 2021 by way of a reconsideration of the evidence that was before the Commissioner unless the Tribunal considers it necessary to allow new evidence.[11] The Tribunal allowed the additional evidence by the Applicants and the Commissioner to be included in the material being considered in the review.
[11]FHOG Act s 60(2)(a).
The Tribunal is to decide the Application based upon the same law as applied when the Commissioner made the decision of 16 June, 2021.[12]
[12]FHOG Act s 60(2)(b).
The grounds on which the Tribunal can review the decision are limited to the grounds of the relevant objection unless the Tribunal otherwise decides. The relevant objection was made by the Applicants on 25 May, 2021.[13] The Applicant’s grounds are set out in its letter/email of objection dated 25 May, 2021.
[13]FHOG Act s 60(3) & (5).
The Tribunal is required to conduct the review by way of a fresh hearing on the merits and to produce a decision that is the correct and preferable decision.[14] The Tribunal is to decide the review in accordance with the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) and the enabling Act which in these proceedings is the First Home Owners Grant and Other Home Grants Act 2000 (Qld). There is no presumption that the decision being reviewed is correct nor is it necessary to find any error in that decision.[15]
[14]QCAT Act s 20.
[15]Rosecove Pty Ltd v Queensland Building and Construction Commission & Anor (2023) QCAT 101 at [7].
The statutory functions of the Tribunal’s review jurisdiction provides that the Tribunal may; [16]
(a)confirm or amend the decision; or
(b)set aside the decision and substitute its own decision; or
(c)set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the Tribunal considers appropriate
[16]QCAT Act s 24.

The Applicants Grounds of Review.

On 25 May 2021 the Applicants objected to the initial decision of the Commissioner made that day to refuse the Grant. That objection referred to the following grounds;
(a)the Applicants had a verbal contract with the Builder;
(b)the Applicants were not sure that the total sum of the renovation would reach $150,000.00. When all the extra renovations reached the amount for a Grant they decided to apply for the grant;
(c)as the Application for the Grant required a written contract, the Builder used the Online Master Builders Contract form and the date of the contract (7 October 2020) was given by the system. He did not know a mere formality like this would result in the Grant being refused;
(d)the Applicants fully complied with the requirements for the Grant spending $150,000 or more between 4 June 2020 and 31 March 2021. That money supported the Builder during a difficult time, which at the end of the day was the purpose of the Grant.
The Applicants submit that they entered into a verbal contract with their Builder on or before the date construction commenced on 13 July 2020. Presumably, they contended that this verbal contract is sufficient to satisfy the criteria for a grant as it was entered into on the before the date construction commenced.
It is not controversial in these proceedings that by 13 July 2020 when any verbal contract might have been entered into by the parties that;
(a)no contract price was stipulated;
(b)there had been a budget $80,000 but once renovation work commenced (ie. on some date after 13 July, 2020) this was shown to be inadequate;
(c)no total cost of construction was available and the Applicants decided to proceed with construction as they trusted their Builder;
(d)once renovation work commenced, it became obvious that additional renovation work was required and the initial budget would be exceeded;
(e)the Applicants decided to proceed on the basis of “time and material” cost basis and to tackle one problem at a time and to see how the cost of renovations unfolded;
(f)that depending upon the cost already incurred the Applicants would address the next renovation required or skip that particular item of renovation altogether.
These uncontroversial facts establish that the verbal contract relied upon by the Applicants commencing on or before 13 July 2020 did not provide any contract price. Rather it was left to the future work undertaken by the Builder which would ultimately determine how much the Applicants would pay for the renovations. This final contract price was not established until about 7 October 2020 when the parties agreed in the Master Builders Contract with a contract price of $163,000.00.
The statutory requirements setting out the eligibility for a Grant requires the application to comply with the “home builder direction”.[17] That homebuilder direction is the Administrative Direction which commenced on 30 July 2020.[18]
[17]FHOG Act 2000 (Qld) s 25Q(2).
[18]FHOG Act 2000 (Qld) see definition of “home builder direction” in the Schedule.
The application for the Grant was made on the basis that the Applicants were undertaking a “Substantial Renovation” of their home The eligibility criteria for a “Substantial Renovation” in the Administrative Directions requires that;
(a)the construction commencement date is on or after the contract commencement date and within 6 months of the contract commencement date.
(b)the consideration is not less than $150,000 and not more than $750,000;[19]
[19]Administrative Direction paragraphs 1.c and 4.a & b.
The verbal contract relied upon by the Applicants in their submissions did not include a contract price to undertake the renovations between $150,000.00 and $750,000.00. Even though the verbal contract relied upon by the Applicants commenced on or before 13 July 2020 it did not contain the required ingredient of a contract price of not less than $150,000 and not more than $750,000.
The Applicants submissions relying on a verbal contract do not satisfy the requisite eligibility criteria in paragraphs 1.c and 4 of the Administrative Directions. The entry into any such verbal contract did not entitle the Applicants to the HomeBuilder Grant
The Commissioner states that it requires applications for the Grant to be made by way of written contract. The Commissioner relied on the terms in the NPA in respect of substantial renovations that “the documentary evidence required is a copy of the relevant contract. The NPA provides in the “Evidentiary Requirements” a table of documentary evidence which is said to be examples of possible evidentiary requirements that could be used by States and Territories as a basis to satisfy themselves that an applicant has met the eligibility criteria. Those requirements state;
This list is not intended to be exhaustive nor obligatory, rather it is intended to assist States in implementing Home Builder. States may request alternative evidence, determined at their discretion, which may or may not be consistent with the precedent in their jurisdiction.
The “Evidentiary Requirements” require for a substantial renovations that a copy of the relevant contract for a building contract value between $150,000 and $750,000 is advised. However it is said that this is a possible evidentiary requirement. Whether this has been adopted as a definite requirement for an application for a grant in Queensland is not demonstrated by the evidence in these proceedings. However, as the Applicants reliance on the verbal contract which does not fix the contract price between $150,000.00 and $750,000.00 is non compliant with the Administrative Directions, it is unnecessary for the Tribunal in these proceedings to decide whether the contract with their builder must be in writing or whether it can be a verbal contract.

The Tribunal rejects the submissions of the Applicants that their entry into a verbal contract on or before 13 July 2020 entitles them to a HomeBuilder Grant.
The Applicants further submit that they were not sure that the renovation costs would exceed $150,000 on or before 13 July, 2020. While the factual premise of this submission accords with the facts in these proceedings, nevertheless, the eligibility requirements in paragraph 1.c and 4 of the Administrative Direction required a contractual consideration of not less than $150,000 and not more than $750,000. Notwithstanding that it was not until some months later that the final costs were ascertained in the order of $163,000.00, those facts do not bring the Applicants within the eligibility requirements in the Administrative Directions at the date of their verbal contract. The required contract price for a substantial renovation contract was not less than $150,000.00 or more than $750,000.00. The uncertainty about the contract price when construction commenced does not assist the Applicants and their submission is rejected by the Tribunal.
The Applicants also submit that the Builder when using the Online form for the Master Builders Contract was allocated a contractual date by that system at the date hi was Online and was not able to insert any alternative date (presumably a date on the before 13 July 2020). Again the facts are not controversial. It was not until such time as the renovation costs were shown to be of the order of $120,000.00 that the Applicants decided to add an extra component of $30,000.00 in relation to new windows. That brought the overall contract price to at least $150,000.00. The evidence does not establish a clear timeline for these events. It seems to be implicit that at the time the parties ascertained a contract price of $150,000 that the Applicants then decided they would apply for the Home Builder Grant which was some date approaching 7 October, 2020.
The evidence is that the Master Builders Contract was signed by the Applicants and the Builder on 7 October 2020.[20] Even assuming that this date was allocated by the “system” it confirms the date the parties entered into that contract. Also, approximately two months later, on about 1 December 2020 the Applicants applied for the HomeBuilder Grant and in their application stated that the Substantial Renovation Contract was signed by the parties on 7 October 2020. There is no other evidence to contradict these facts.
[20]See Exhibit 7 at page 62.
The Tribunal finds that the Applicants and the Builder entered into the written contract on 7 October 2020. Even if the “system” allowed for alternative and earlier dates to be inserted, nevertheless the facts are that it was not until 7 October 2020 that the Master Builders Contract was entered into by the parties. Any such alternative date would not have been in accordance with the chronological date on which the parties in fact entered into that building contract. The Tribunal rejects this further submission by the Applicants that the parties could have, but for the Online system, inserted an earlier date for the 7 October, 2020 contact.
The Applicants further submit that they fully complied with the requirements for the Grant spending $150,000 or more between 4 June 2020 and 31 March 2021. While that submission contains factual correct matters, nevertheless it leaves open for consideration whether in fact “they fully complied with the requirements for the Grant”. Their non-compliance with paragraphs 1.c and 4 of the Administrative Directions has already been discussed above and the Tribunal has already made findings that they did not comply with the requirements for the Grant. Those above reasons are relied upon in respect of this submission which the Tribunal rejects.
The Tribunal finds that the grounds of objection to the decision under review dated 16 June 2021 have not been established. The Tribunal finds that the Applicants are not entitled to a HomeBuilder Grant. As construction commencement date was not on or after the contract commencement date of 7 October 2020. The Tribunal is satisfied that in conducting this review the correct and preferable decision is to confirm the decision of the Commissioner made on 16 June 2021.

Orders

The Tribunal orders that the decision of the Commissioner of State Revenue made on 16 June 2021 is confirmed.