Webb v Commissioner of State Revenue

[2025] QCAT 210

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Webb v Commissioner of State Revenue [2025] QCAT 210

PARTIES:

ADAM ARTHUR WEBB 

(applicant)

v

COMMISSIONER OF STATE REVENUE

(respondent)

APPLICATION NO/S:

GAR337-23

MATTER TYPE:

General administrative review matters

DELIVERED ON:

2 June 2025

HEARING DATE:

8 April 2025

HEARD AT:

Brisbane

DECISION OF:

Member Richard Oliver

ORDERS:

The decision of the respondent is confirmed.

CATCHWORDS:

TAXES AND DUTIES AND HOME OWNERS GRANT – ADMINISTRATIVE DIRECTION – QUEENSLAND – where applicant entered into a building contract for a new dwelling to be constructed on land where there was an existing dwelling – where the contract did not involve any renovation work to the existing dwelling – where the existing dwelling was not to be demolished – where the applicant applied for the HomeBuilder grant on the basis that the building contract for the new dwelling was a substantial renovation contract – where application for Grant rejected on the grounds that the building contract was not a contract for a substantial renovation – whether building contract was entered into was a substantial renovation contract as defined s 19 of the Administrative Direction –  whether Grant payable to the applicants

Queensland Civil and Administrative TribunalAct2009 (Qld), s 20, s 24

First Home Owner Grant and Other Home Owner Grants Act 2000 (Qld), s 25Q

APPEARANCES & REPRESENTATION:
Applicant:	Self-represented
Respondent:	Ms Spottiswood of counsel instructed by the respondent in-house legal service

REASONS FOR DECISION

Background

1. In late 2020 the applicant sought to take advantage of the HomeBuilder Grant scheme introduced by the Commonwealth Government in 2020 during the Covid-19 pandemic. On 1 December 2020 he purchased a large block of land, some 7.44 acres at Loganholme. On 24 December 2020 he entered into the New Home Construction Contract with Hallmark Homes to construct the new house on the land. The contract price for the new house was $449,254.00.

2. On 29 December 2020 he applied for the HomeBuilder Grant on the basis that his contract with Hallmark Homes was for a major renovation contract of an existing dilapidated house already on the land. Although the new house was completely separate, and not connected in any way with the existing house, he contends that the new house enhanced and improved the amenity of the existing house, which was uninhabited, and the property as a whole. It was not intended to demolish the old house but for it to remain in situ and be used as a granny flat/storage.

3. As the contract was entered into between 4 June 2020 and 31 March 2021, the applicant was entitled to access the Commonwealth’s HomeBuilder Grant (“the Grant”) administered under the First Home Owner Grant and Other Home Owner Grants Act 2000 (Qld) (“FHOG Act”). That is, for an eligible transaction and compliance with the Administrative Direction (“the Direction”) issued jointly by the Queensland State Government and the Commonwealth Government, a homeowner can receive a grant of $25,000 for, in this case, a substantial renovation to their home.

4. Under s 25Q(3) of the FHOG Act an applicant for the Grant is entitled to be paid 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 transaction; and

   (c)The relevant requirement in relation to the eligible home builder transaction has been met.

5. Further and relevantly, s 25Q(3)(b) and eligible home builder transaction means an eligible transaction within the meaning of the Direction.

6. Here the relevant part of the Direction applicable to the applicant’s transaction is s 19(a) because the applicant contends that the Hallmark Homes contract was a substantial renovation contract of the existing home. The definition of “substantial renovation contract” under the direction:

   (a)is a contract for the renovation of an existing dwelling which substantially alters the existing dwelling and improves the accessibility or safety or livability of the property although this need not involve the removal or replacement of foundations, external walls, interior walls, floors, roofs, or staircases; or

   (b)is a contract for the demolition of an existing home and building of a new home on the land; or

   (c)is a contract for the building of a new home on the land which replaces a pre-existing home on the land that was demolished under a separate contract entered into by the applicant.

7. Having applied for the Grant and provided all the necessary information to the respondent for its consideration, unsurprisingly the application for the Grant was initially rejected in a letter to the applicants on 11 August 2022, and confirmed in a Review Decision on 17 March 2023.[1] The reason for the rejection was because the Commissioner considered the Hallmark Homes contract did not meet the definition of a substantial renovation contract. The Hallmark contract was for:

   NEW LOW SET BRICK DWELLING, INFINITY 319 WITH TREND SPECIFICATION BUILDING SCHEDULE DATED 22/12/2020 AND PLANS.[2]

   [1]Exhibit 2 (s 21(2) documents filed by the respondent) p 2.

   [2]Hearing Book page 149.

8. On receiving the final review decision on 17 March 2023, the applicant filed an application to review that decision on 16 May 2023.[3] The Tribunal’s function under s 20 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”) is to produce the correct and preferable decision.[4] In support of the application, the applicant has filed written submissions. The Commissioner has filed written submissions and relies on the documents filed under s 21 of the QCAT Act.

   [3]Although it appears the application for review was filed out of time, the point was not taken by the respondent and the matter proceed to a hearing without objection. In view of the result, little turns on this point.

   [4]QCAT Act s 20.

9. It was conceded by both parties at the commencement of the hearing that there was no dispute of fact and the correct and preferable decision turns on whether the contract falls within s 19(a) of the Direction, as a contract for a substantial renovation. That is the issue for determination. It is not contested that the Hallmark Homes contract did not involve any renovation work to the existing house.

   The applicant’s submission

10. The applicant refers to the purpose of the Grant which was introduced during the Covid-19 pandemic period to stimulate the building construction industry. That is all correct and accepted by the Commissioner but that does not give the Commissioner, or this Tribunal on review, any discretion to deviate from compliance with the Direction to determine if an applicant satisfies the criteria. It has been reinforced in many of these review decisions by the Tribunal that discretion plays no part in deciding if an applicant qualifies for the Grant.

11. The applicant contends that by entering into the Hallmark Homes contract that he has substantially altered the existing house. He submits he has done so by increasing the size of the existing dwelling house from 144m² to 501.68m². That is an increase by 348% and therefore substantial. And, by reference to s 19(a) the “renovation” did not involve the removal of foundations, external walls etc, it fully complies. That is simply not correct, the new single detached dwelling does not incorporate the existing structure and they remain separate structures.

12. Further, he submits that “I’m approved as a new primary dwelling by Council and I’m defined as a primary dwelling under the Planning Act”.[5] Although he does have planning permission for a second dwelling, duel occupancy, on the land from the  Logan City Council[6] that does not change the characterisation of the “new low set dwelling” to a “substantial renovation” within the definition.

    [5]Applicant’s submissions pages 37-38.

    [6]Hearing Book page 116.

13. The applicant contends that the new house must comply with the certified Building Approval and be consistent with the material change of use approval by the Logan City Council. That, again is correct but compliance with the Direction is not dependant on the use of the land under the planning scheme. I find this does not assist the applicant.

14. He challenges the conclusion of the respondent’s decision maker that the contract provides for “the construction of a new house on the same land as the pre-existing dwelling”. He does so by contending that:

    You can’t have two homes on the one block of land. It is against Council’s laws. Two homes on the one block is called Dual Occupancy. I don’t have Dual Occupancy. I have a Dwelling House (which includes a primary dwelling and a secondary dwelling). As previously stated in my original objection and as defined by the Planning Act. It has also been approved by Council as a dwelling House and has also been approved by the Building Certifier as a Dwelling House. These are material findings of fact.[7]

    [7]Applicant’s submission page 39.

15. In applying the Direction, the Commissioner, and this Tribunal by way of review, must apply the Direction to the actual transaction under consideration for the Grant. That transaction here is the construction of a new dwelling under the Hallmark Homes contract, not a renovation of a dwelling or a house. It is the presence of the existing house which is the impediment to the application of the definition of a “substantial renovation contract” to this transaction. 

    Discussion

16. It is necessary for the applicant to establish the three elements of the definition of a substantial renovation contract. They are:

    (a)The contract is for the renovation of an existing dwelling;

    (b)It substantially alters the existing dwelling; and

    (c)It improves the accessibility or safety or liveability of the property.

17. In applying these elements I will start with a basic description of the existing house on the property. There are photographs annexed to the Commissioner’s final decision.[8] They depict a very old (say 1940s) high set Queensland style weatherboard house with the external walls in poor condition with flaking, and in areas non-existent, paintwork. The inside walls are VJ boards typical of the time, in a similar painted condition. It has a rusted iron roof, no guttering or downpipes visible. It would appear to have been re-stumped with concrete stumps in more recent years, although a photo on page 130 of the hearing book show stumps with a significant lean. The bearers and joists seem to be in reasonable condition. When compared with the plans and design of the Hallmark Homes house to be constructed, there is a world of difference between the two structures.

    [8]Hearing Book pages 9-15.

18. The obvious point to make in comparing the two structures is that the existing weatherboard house does not in any way compliment or add to the amenity or use of the new Hallmark Homes house or vice versa. During the hearing I showed the parties an aerial shot of the properties on Google Maps displayed on my laptop computer. The applicant agreed it was the property displayed on the screen which showed that the two houses were a considerable distance apart, some 15m,[9]  as can been seen on the site plan on page 98 of the hearing book.

    [9]Hearing Book page 120.

19. The next obvious point to make is that the Hallmark Homes contract does not involve any renovation works to the existing weatherboard house. It is solely concerned with the construction of new dwelling in accordance with the plans included at pages 91 – 99 of the hearing book.

20. Therefore the first two elements of the definition are not met. As for the improvement to the accessibility or safety or liveability of the property, as no work is to be done to the existing dwelling, it is difficult to see how this element is satisfied as well.

21. I find that by reference to the Hallmark Homes contract and the plans that this is not a ‘substantial renovation contract’ within the meaning of s 19(a) of the Administrative Direction.

22. The applicant accepts that he is only eligible to take advantage of the Scheme if he can satisfy the criteria under the Direction that the contract he entered into with Hallmark Homes was a “substantial renovation contract’ as defined in s 19 of the Direction. He contends that the contract provides for a renovation of the existing dwelling on the property, that is, what I referred to as the existing high-set Queensland type house. Clearly the contract did not provide for that on its face, it was for a separate new dwelling. There can be no doubt about that. No work at all, renovation or otherwise, was to be carried out on the existing house. Again so much is conceded.

23. The applicant contends that because he applied for, and obtained, a material change of use of the property under the Logan City Council planning scheme to build a second dwelling on the property, the second house or dwelling then fell within the definition as an improvement to the existing dwelling. Obviously the property is enhanced with the construction of the new home but that does not assist the applicant. Under the Direction it is the contract that has to be source of qualification for the Grant.

24. I am satisfied that the decision of the Commissioner is correct. Therefore the correct and preferable decision is that the decision of the Commissioner of 17 March 2023 is confirmed.