Dowling v Commissioner of State Revenue [2025] QCAT 269

Queensland Civil and Administrative Tribunal|2025-06-25

GENERAL ADMINISTRATIVE REVIEW - FIRST HOME OWNER GRANT - whether 'eligible transaction' - whether 'new home' - where applicant contracted to purchase a house - where Form 21 certificate was not provided before the purchase contract was settled - whether new home was a suitable building for use as a place of residence - whether new home could lawfully be used as a place of residence

Bielefeld v The Commissioner of State Revenue [2015] QCAT 222

H E Hadgraft instructed by Queensland Office of State Revenue

[1] Cecilia Dowling (applicant) bought her first home pursuant to a contract of sale dated 1 November 2021 (contract). Her application for a first home owner grant was refused by the Commissioner of State Revenue (Commissioner). The Commissioner decided that the grant was not payable because the contract was not an eligible transaction. This decision was made on the basis that the building which was the subject of the contract was not a new home because it could not lawfully be used as a place of residence or was not a suitable building for use as a place of residence.
[2] The applicant sought internal review of the decision. The internal review affirmed the original decision. The First Home Owner Grant and Other Home Owner Grants Act 2000 (Qld) (the Act) provides a right to apply to QCAT to review the internal review decision.[1] The applicant asks that the Commissioner's decision be reversed.

[3] Section 10 relevantly provides that an applicant for a grant must:

(a) comply with the eligibility criteria in part 3, division 2 of the Act; and

(b) the transaction must be an eligible transaction that has been completed.

[4] Section 20 of the Act relevantly provides that the amount of the first home owner grant (FHOG) for a new home eligible transaction (as defined in section 5(1)) is $15,000 or the amount of the consideration of the eligible transaction, whichever is lesser.
[5] Section 5(1) of the Act provides that an eligible transaction is:

(a) a contract made on or after 1 July 2000 for the purchase of a new home in the State; or

(b) a comprehensive home building contract made by the owner of land in the State, or a person who will on completion of the contract be the owner of land in the State, to have a new home built on the land, if the contract is made on or after 1 July 2000; or

(c) the building of a new home in the State by an owner builder if the building work starts on or after 1 July 2000.

[6] Section 5(2) of the Act provides that each of the following is also an eligible transaction:

(a) a contract made on or after 1 July 2000 but before 11 October 2012 for the purchase of a home, other than a new home, in the State;

(b) a comprehensive home building contract made by the owner of land in the State, or a person who will on completion of the contract be the owner of land in the State, to have a home, other than a new home, built on the land, if the contract is made on or after 1 July 2000 but before 11 October 2012;

(c) the building of a home, other than a new home, in the State by an owner builder if the building work starts on or after 1 July 2000 but before 11 October 2012.

[7] Section 5(3) relevantly provides that for subsections (1)(a) and (2)(a), a contract is a contract for the purchase of a new home or other home if the contract is a contract for the acquisition of a relevant interest in land

(a) on which a new home or other home is built; or

(b) on which a new home or other home is to be built, before completion of the contract, by or for the vendor and at the expense of the vendor.

[8] Section 6(1) of the Act relevantly provides that a 'home' is a building, fixed to land, that -

(a) may lawfully be used as a place of residence; and

(b) is a suitable building for use as a place of residence.

[9] Section 6(2) provides that a 'new home' is a home that -

(a) has not been previously occupied or sold as a place of residence; or

(b) is a substantially renovated home.

[10] Section 19(1) of the Act provides that:

If the commissioner is satisfied a first home owner grant is payable on an application, the commissioner must authorise the payment of the grant.

Building Act 1975 (Qld) (Building Act)

[11] Section 99 of the Building Act provides that if, at the inspection of the final stage of building work, the building certifier is satisfied, on an inspection carried out under best industry practice, the work complies with the building development approval, the certifier must ensure the owner of the building is, within the required period, given a final inspection certificate for the building work and a copy of any other inspection documentation for inspection of the building work.
[12] Section 115 of the Building Act provides that a person must not, unless the person has a reasonable excuse, occupy or use a building if the building does not comply with the following for occupation or use -

(a) any relevant BCA provisions for its class of building;

(b) any relevant QDC provisions for the building.

[13] The Building Regulation 2021 (Qld) commenced on 1 September 2021, before completion of the contract. It provides that a smoke alarm must be included in every bedroom in a class la building.
[14] The applicant's house is classified as a class la building.

[15] The tribunal is to decide the review based on the evidence that was before the Commissioner when the decision was made, unless it is necessary in the interests of justice to allow new evidence (evidence that was not before the Commissioner when the decision on the objection was made).[2] It is in the interest of justice to allow new evidence, which adds detail and context to evidence that was before the Commissioner. The Commissioner did not object to new evidence.
[16] The applicant's evidence was largely unchallenged. She signed the contract of sale on 31 October 2021. The contract was conditional on, among other things, a Form 21 being provided prior to settlement. A Form 21 is a final inspection certificate that is issued pursuant to s 99 of the Building Act. There was some unfinished internal painting and flooring which the builder had been unable to complete due to illness.
[17] The seller/builder, Mr John Garlick, signed the contract on 1 November 2021, and the applicant did not realise that he had added what she described as 'gibberish', apparently referring to clause 3 in the special conditions which reads:

THE BUYER IS BUYING THIS HOUSE AS IS AND NO REPROCUSSION (SIC) IS TO COME BACK TO OWNER AND BUILDER, THIS REFLECTS WITH THE SALE PRICE BEING LOWER THAN AVERAGE IN CURRENT MARKET, THE BUYER TO HAVE THEIR CHOICE OF PEST AND BUILDING INSPECTORS, PROPERTY NEEDS TO HAVE ITS FINAL CERTIFICATES (FORM 21)[3]

[18] On 23 November 2021, a building inspector issued a report that stated that there were 'unsatisfactory requirements' specifying 'INTERNAL - Smoke Alarms - Unsatisfactory' and 'OTHER - Unsatisfactory'. There was no indication what the 'Other' matters were or how the smoke alarms were unsatisfactory.[4] The report also said the inspection outcome was 'Satisfactory (minor issues) subject to documents being provided'. Under the heading 'Re-inspections' it said 'No re-inspections required for this inspection'.[5]
[19] The statements about the smoke alarms seem to contradict the evidence. Smoke alarms are clearly visible in photographs of the real estate listing prior to the sale.[6] On 30 August 2021, a 'Form 16 Smoke Alarms' certificate was issued.[7] There is no evidence that there was any addition to, or change to, the smoke alarms in the house between settlement and the issuing of the Form 21.
[20] The applicant attested that, as settlement approached, she became concerned that the Form 21 had not been provided. She asked her conveyancer to speak urgently with the seller's solicitors. Despite not having the Form 21, she went ahead with completion of the contract as her lease was expiring in December 2021.[8] Settlement occurred on 2 December 2021 and the applicant became the registered owner. She moved into the house with her daughter and their pets, and they remain living in the house.[9]
[21] She had difficulty getting the certifier to pursue Mr Garlick for the certificates that were required for the Form 21. In her efforts to obtain the Form 21, she made a complaint to the Queensland Building and Construction Commission, and took legal action against Mr Garlick, who subsequently died. She discovered that some inspections had not been carried out, so she arranged for those at her own expense. This took some time as she had to save the money to pay for them.[10]
[22] Her evidence is that, at the date of settlement, all required building work had been done, and what had not been done were some inspections and certifications of the completed work.[11]
[23] The Form 21 was eventually issued on 6 April 2023. Many of the certificates relied on in the Form 21 predate the settlement of the purchase contract. The Form 21 said 'Works completed within timeframe, some final documentation, including final inspection was conducted and received after expiry date, but accepted to comply with regulatory intent'.[12]
[24] The Commissioner's refusal of the application hinged on the lack of a Form 21 on completion of the contract. She decided that there was unfinished work at the date of settlement which meant that the house could not have been lawfully used as a place of residence and was not a suitable building for use as a place of residence.

[25] For the reasons set out below we have decided that the correct and preferable decision is that the contract is an eligible transaction because it is a contract for the purchase of a new home, i.e., a home that had not been previously occupied.
[26] The starting point is to construe the Act as a whole. The long title reflects the purpose of the legislation to encourage and help home ownership by establishing a scheme for the payment of grants to first home owners. The applicant has not previously owned a home so is a person who might be eligible for a grant.
[27] There are statutory limits on eligibility. Some are temporal,[13] others relate to the consideration for the transaction,[14] and others relate to misconduct by an applicant.[15] None of those limitations are relevant.
[28] Section 5 of the Act identifies three types of transaction:

(a) a contract for purchase made after 1 July 2000;

(b) a comprehensive home building contract made by the owner of land, or a person who will on completion be the owner of land, if the contract is made after 1 July 2000; and

(c) building by an owner builder, if the building work starts after 1 July 2000.

[29] If the transaction is made after 1 July 2000 but before 11 October 2012 and is in respect of a home other than a new home, section 5(2) applies. If the transaction is made after 1 July 2000 and is in respect of a new home, section 5(1) applies.
[30] The focus of these proceedings is the categorisation of the transaction into which the applicant entered. This requires an objective analysis of the contract, not an analysis of the events that followed. The contract was to purchase freehold land which had a house built on it. It is agreed that the house had not been previously occupied. We find that the contract to purchase falls squarely within the provisions of section 5(1). This reasoning is consistent with section 5(3) which provides that a contract is a contract for the purchase of a new home if it is for the acquisition of a relevant interest in land on which a new home is built.
[31] The Commissioner's approach of incorporating the definition of home into the definition of new home was an unduly restrictive reading of section 5(1)(a) of the Act. In effect, in order to be an eligible transaction, the Commissioner requires the purchase contract to be in respect of a building that:

(a) could lawfully be used as a place of residence;

(b) was a suitable building for use as a place of residence; and

(c) had not been previously occupied.

[32] Had the legislature intended that eligibility be restricted in the way contended for by the Commissioner, section 5(1)(a) would have described the transaction as 'a contract for the purchase of a home that is a new home'. It does not do so.
[33] Section 5(2) of the Act addresses transactions for the purchase or construction of a home other than a new home, made within a defined window of time. The definitions of home and new home in sections 6(1) and 6(2) are needed in order to ascertain whether or not a transaction made within the specified time period was in respect of a home other than a new home.

[34] If we are wrong, and in order to be eligible the applicant must demonstrate that the contract was to purchase a house that had not been previously occupied, and that could lawfully be used as a place of residence and was suitable for use as a place of residence, then for the reasons set out below we are of the view that the contract is an eligible transaction.
[35] As stated above, what is required is an objective analysis of the subject matter of the contract. The contract was for the purchase of land with a house on it. The real estate listing for the property showed a fully constructed house. The applicant bought the property to live in. Nothing in the contract, nor any other evidence before the tribunal, indicates any agreement to purchase a part-built property that could not legally be used as a place of residence. The only unfinished work that was brought to the applicant's attention was cosmetic. Clause 3 of the special conditions indicated that a Form 21 was to be provided. There is no evidence that the house was not, to the applicant's knowledge or objectively, a suitable building for use as a place of residence. To the contrary, the evidence is that the applicant and her daughter have resided in the property since the contract was settled in December 2021. The fact that the flooring in the bedrooms had not been completed and that there was painting left to be done at the settlement date did not make the house unsuitable to live in and did not prevent the issue of the Form 21 certificate.
[36] The Act does not prescribe requirements for establishing that a home can be lawfully used as a place of residence. It does not specify that an applicant must produce evidence that the building complies with the Building Act, or the National Construction Code or the Queensland Development Code. Neither it, nor any other legislation that was brought to the tribunal's attention, indicates explicitly or by necessary implication, that failure to obtain certificates or comply with building standards or development approvals means a house cannot lawfully be used as a place of residence.
[37] Section 115 of the Building Act does not assist the Commissioner. The Commissioner contended that the applicant did not have a reasonable excuse to occupy the building. While it was not entirely clear, the Commissioner's submission seemed to be that it followed that in the absence of a reasonable excuse, the applicant's occupation of the house was unlawful, meaning the building was not lawfully occupied. However, even if the applicant's occupation had been unlawful (and we make no such finding) it does not mean the building was incapable of lawfully being used as a residence. The question of whether it may lawfully be used as a residence cannot depend on whether or not each of its residents have a reasonable excuse for occupying it.
[38] Even if it were the case that the applicant had to establish that the house could be lawfully used as a place of residence at the time of settlement, we are satisfied she has done so. The applicant provided a Form 21 final inspection certificate. Despite the time it took to provide the Form 21, there is no evidence of non-compliance with the technical structural requirements of the Building Act, or the National Construction Code or the Queensland Development Code. The evidence in relation to smoke alarms does not indicate non-compliance with statutory requirements.
[39] Through no fault of her own, the applicant could not obtain the Form 21 from the certifier until 6 April 2023. It is not the applicant's fault that the seller/builder did not obtain necessary forms during the course of construction and provide them to the certifier, or that he died before providing the necessary forms to the certifier. When the Form 21 was finally provided it gave no indication that the house could not lawfully be used as a place of residence at any time.
[40] The facts of this case are distinguishable from the facts in Bielefeld v The Commissioner of State Revenue.[16] In that case, the tribunal decided that until the relevant building was certified as complete and compliant with Council standards, it was not a 'home' as defined in the Act. Applying the reasoning in that case, the Commissioner submitted that the applicant's house could not lawfully be used as a place of residence prior to 6 April 2023, being the date of the Form 21. That case is not analogous to the present case because in that case, the contract was not for the purchase of a new home. Rather, it was for major building work that was intended to, and did, result in a new home. The work included relocating an unspecified existing home to land, but the contract was not for the purchase of that home.

[41] The Commissioner's decision of 2 August 2023 is set aside. The applicant is entitled to payment of the First Home Owner Grant of $15,000.

Home Owner Grant and Other Home Owner Grants Act 2000

At a glance

Court

Decision date

Source

Judgment (37 paragraphs)

Parties

Legislation Cited (1)