Nandy v Commissioner of State Revenue [2025] QCAT 531

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 18, s 19, s 20(1), s 24

Taxation Administration Act 2001 (Qld), s 69, s 71, s 73

Avondale Motors (Parts) Pty Ltd v Federal Commissioner of Taxation [1971] HCA 17; (1971) 45 ALJR 280

Commissioner of State Revenue v Di Sipio & Anor [2015] QCA 198

Grist v Commissioner of State Revenue [2014] QCAT 259

Loutit & Anor v Commissioner of State Revenue (Queensland Civil and Administrative Tribunal, Member Allen (26.06.2018)

Ryan v Commissioner of State Revenue, Office of State Revenue [2012] QCAT 314

YZ Finance Co Pty Ltd v Cummings [1964] HCA 12; (1964) 109 CLR 395

• [1] The following facts are not in dispute.
• [2] On 11 October 2024, the Applicant filed an application to review a decision of the Commissioner of State Revenue made 13 August 2024.

• [3] The Applicant, Ms Nandy, purchased a property situated at 33/62 Victor Street Runcorn, Queensland (the 'property') for $450,121.
• [4] Being an agreement for the transfer of dutiable property, the Applicant's contract for the purchase of the property was a dutiable transaction, and the Applicant's liability would have arisen on 24 June 2023, when the agreement was made.[1]
• [5] At the time of the purchase, the Applicant claimed a concessional rate of duty by completing a Form QRO D2.1 - Claim for home or first home transfer duty concession ('Form D2.1').
• [6] In signing the Form D2.1, the Applicant declared to the Commissioner that amongst other things, the Applicant would:

(a) notify the Commissioner if she disposed of the property by transferring, leasing or otherwise granting exclusive possession of all or part of it before occupying it as her principal place of residence.

• [7] As a result of the Applicant's solicitor lodging the Form D2.1, and, on the basis that the Applicant had claimed the First Home Concession, the transfer duty liability was assessed as nil.
• [8] The Applicant advised the Commissioner that the Contract was subject to a pre-existing lease which was due to expire on 3 February 2024. Consequentially, the Applicant's solicitor's transaction statement identified that the 'occupation date' would be 4 February 2024.
• [9] The settlement date was 11 August 2023 that being the date when settlement occurred, and Ms Nandy paid the purchase price in exchange for a registrable Transfer.
• [10] On 24 May 2024 however, the Applicant lodged a Form QRO D2.4 (Notice for reassessment of transfer duty- home, first home or vacant land concession) ('Form D2.4'). That form:

(a) noted that the existing tenant 'did not vacate after the end of the current term'; and

(b) stated the following by way of an explanation for why the Applicant could not meet the concession requirements:

The existing tenant was a non-profit organization (Compass Housing) subletting the premises to other tenants. The subtenant delayed in moving out and the existing tenant delayed further to organise repairs and bring the property back up to a reasonable condition prior to handing over.

• [11] A delegate of the Commissioner spoke to the Applicant by telephone on 25 May 2024. During that call, the Applicant advised that the tenant continued to occupy the property beyond 3 February 2024 stating that they had failed to return the keys and that they were conducting repairs on the property.
• [12] On 30 May 2024 the Commissioner issued a reassessment notice in accordance with s 154(3) of the Duties Act 2001 (Qld) (the 'Duties Act') (the 'Reassessment Notice'). That notice:

(a) reassessed the transfer duty payable as being $14,182.00;

(b) imposed a (partially remitted) unpaid tax interest of $1,263.14; and

(c) wholly remitted penalty tax, on the basis of the Applicant's voluntary disclosure of her change in circumstances.

• [13] On 20 June 2024, the Applicant lodged a Form QRO GEN1 Objection to the Reassessment Notice. On 13 August 2024, the Commissioner disallowed the objection and confirmed the Reassessment Notice (the 'Objection Decision').
• [14] On 11 October 2024, the Applicant filed an application to review a decision in respect of the Objection Decision ('Review Application').
• [15] Section 154 of the Duties Act imposes requirements upon a transferee of property who claims the First Home Concession. The provision deals with situations where the transferee 'disposes' of the land before the occupation date.[2]
• [16] The provision deals with reassessments of duty where there has been a non-compliance with occupancy requirements as has occurred in this matter.
• [17] Pursuant to s 154(2AA) of the Duties Act, the Applicant is taken not to have disposed of the land, for the purposes of s 154(2) of the Act, if the existing occupier, being the sub-tenant, vacated the property within the earlier of:

(a) the termination of the current term of the applicable lease (being 3 February 2024); or

(b) within six months of the transfer date (being 11 February 2024).

• [18] Section 154(1)(b) recognises that 'intervening events' can occur that prevent a transferee from complying with the occupancy requirements. The term 'intervening events' is defined in Schedule 6 of the Duties Act as follows:

(a) a natural disaster, including, for example, fire and flood; or

(b) the death or incapacity of a person to whom section 153, 154, 246AJ or 291 applies; or

(c) another event prescribed under a regulation.

• [19] The Applicant contends that the holding over by the sub-tenant who was in occupation of the property pursuant to a tenancy agreement with the lessee, amounts to an 'intervening event' as referred to in Schedule 6.
• [20] At the date that the Applicant did not meet the eligibility requirements for the first home concession, the Duties Regulation 2013 (Qld) did not prescribe any additional events as an 'intervening event'.
• [21] The issue to be decided is whether the circumstances that led to the delay in the Applicant taking up occupancy of the property amount to an 'intervening event' such that a 'disposal' of the property did not occur.
• [22] As the decision-maker for the Commissioner expressed the situation in his Statement of Reasons:[3]

It follows, unless the disposal was because of an "intervening event" (as defined in the Duties Act and discussed below), the Commissioner was required to reassess further transfer duty pursuant to s 154 of the Duties Act.

• [23] The Tribunal has jurisdiction to review the Objection Decision.[4] When reviewing a decision the Tribunal stands in the shoes of the original decision-maker.[5] The review is based on the grounds raised in the objection, unless the Tribunal orders otherwise.[6] The Tribunal must hear and decide the review by way of a reconsideration of the evidence before the Commissioner, unless the Tribunal considers it necessary in the interests of justice to allow new evidence.[7] The Tribunal must decide the review of the decision in accordance with the same law that applied to the original decision.[8] The Applicant has the onus of proving their case.[9]
• [24] The purpose of the review is for the Tribunal to produce the correct and preferable decision.[10] The Tribunal may confirm or amend the original decision, set it aside and substitute its own decision or set it aside and return the matter to the decision-maker for reconsideration, with the directions the Tribunal considers appropriate.[11]
• [25] The law relevant to the assessment and reassessment of the duty is found in the Duties Act. A transfer of land in Queensland is a dutiable transaction. Transfer duty is payable on the dutiable value of the dutiable transaction, at the time when liability arises, by the parties to the transaction at the applicable rate of duty set out in schedule 3, subject to any concessions available.
• [26] The effect of s 69(1)(b) of the TA Act is that, for a taxpayer to apply to the Tribunal for a review of an assessment, the taxpayer must pay, within 60 days after notice is given of the commissioner's decision in relation to the objection, the amount of the tax and the late payment interest under the assessment.
• [27] During the hearing, the Applicant advised that she had made the necessary payment to meet this requirement.

• [28] The Applicant says that the circumstances that led to her delay in taking up occupancy fall within the description of an 'intervening event' as defined in Schedule 6 to the Duties Act.
• [29] In the Form QRO D2.4 (Notice for reassessment of transfer duty- home, first home or vacant land concession) ('Form D2.4') lodged by the Applicant with the Respondent on 24 May 2024, she informed the Commissioner that the delay in taking up occupancy was due to the sub-tenant failing to move out in the agreed period and the need for some repairs to be undertaken by the lessee prior to handing back the property.
• [30] The Commissioner accepted that this was the reason for the delay but did not accept that the facts met the description of an 'intervening event'.
• [31] Pursuant to s 71(3)(a) of the TA Act, the Tribunal must "hear and decide the review of the decision by way of a reconsideration of the evidence before the commissioner when the decision was made, unless [the Tribunal] considers it necessary in the interests of justice to allow new evidence". "New evidence" is further defined as "evidence that was not before the commissioner when the decision on the objection was made". The Applicant bears the onus of demonstrating that any 'new evidence' is necessary in the interests of justice.
• [32] The Review Application filed by the Applicant included documents that had not been provided to the Commissioner and had not been considered by it in reaching the Objection Decision.
• [33] The Applicant did not file an application for directions seeking the Tribunal's consideration of this new evidence. At the hearing, the Applicant made an oral application for new evidence to be admitted.
• [34] The Applicant sought to have new evidence admitted with that evidence being a copy of a Form 12 Notice to Leave that issued to the tenants on 6 October 2023 and emails exchanged by the Applicant with the real estate agent who was managing the property on 5, 6 October and 26, 27, 31 January 2024.
• [35] Pursuant to s 61 of the QCAT Act, the Tribunal waived the requirement for a written application to be filed by the Applicant.
• [36] The Respondent submitted that the Applicant should not be allowed to adduce the evidence because it is not in dispute that the delay was caused by the tenant holding over.
• [37] The issue for determination is, in essence, a legal question being whether the holding over by the sub-tenant, against the wishes of the Applicant, gives rise to an 'intervening event'.
• [38] Evidence that further supports the Applicant's position that the holding over was against her wishes does not assist the Tribunal in deciding this question and the interests of justice would not be advanced by allowing the Applicant to adduce it. On this basis, the application to adduce the evidence was refused.

• [39] On 24 May 2024, the Applicant lodged a Form QRO D2.4 - Notice for Reassessment of transfer duty - home, first home or vacant land concession (Form D2.4) with the Commissioner in which the Applicant informed the Commissioner that the existing tenant did not vacate the lease after the end of the current lease term.
• [40] The other information provided by the Applicant to the Commissioner, and that was before the Commission at the time of the reassessment, was the information provided by the Applicant to the delegate of the Commissioner on 25 May 2024 when the matter was discussed by phone call. During that call, the Applicant advised that the tenant continued to occupy the property beyond 3 February 2024 stating that they had failed to return the keys and that they were conducting repairs on the property.
• [41] That is the evidence that the Tribunal must consider in determining the Applicant's Review Application.

(a) the Respondent has not considered the circumstances that prevented her from taking up occupancy within the requisite period but has treated the disposal as occurring automatically and without proper consideration of her circumstances;

(b) she was legally incapacitated from occupying the property due to the tenant holdover and that the circumstances were 'equivalent to a natural disaster';

(c) the Tribunal has a discretion to assess whether an event meets the intent of the legislation even if that is not explicitly stated;

(d) the purpose of s 154(2)(c) is to prevent individuals from claiming the concession while deliberately leasing the property for financial gain;

(e) the decision is not consistent with the scheme in place under the First Home Owner Grant and Shared Equity Act 2000 (NSW) and that the legislative model in that State recognises 'real-world complications such as legal disputes, illness or incapacity, delayed construction or tenant's refusal to vacate';

(f) that, although the Duties Act lacks the discretionary power that is available under the NSW scheme, QCAT should give regard to the national legal trend which promoted fairness for genuine first home buyers acting in good faith but obstructed by external circumstances.

• [43] The Applicant's submissions include reference to a decision in the matter of Commissioner of State Revenue v Di Sipio & Anor[12] ('Di Sipio decision').
• [44] In that matter, the transferees entered into a contract to buy a residence that was subject to a 12-month tenancy which was, in effect, assigned to the transferees. The issue was whether this amounted to a 'disposal' of the property by the transferees disentitling them to the first homeowner's concession.
• [45] It was decided by the Supreme Court that the wording of the legislation at that time required a 'positive act' in order for it to be said that there was a disposal and that a disposal did not occur in circumstances where the transferees merely acquired the property subject to an existing lease.
• [46] Following that decision, s 154 was amended to specifically address the Di Sipio decision.
• [47] After this was pointed out to the Applicant that the legislation was amended following the Di Sipio decision, the Applicant has not referred to the decision further in her submissions and it appears that she has accepted that the decision is not relevant to the legislation.

• [48] The Respondent submits that the matters in issue are:

(a) whether the Applicant disposed of the residential land prior to the occupation date;

(b) if so, whether the Applicant's disposal of the residential land prior to the occupation date was due to an 'intervening event';

(c) whether the Commissioner or Tribunal otherwise has any discretion to take into account the Applicant's personal circumstances in reconsidering the Reassessment Notice or Objection Decision.

• [49] The Respondent says that based on 'orthodox' statutory interpretation, the term 'means' is intended to be exhaustive and to only apply to the circumstances referred to in the Schedule and that the definition was not intended to encompass miscellaneous circumstances.
• [50] The case cited by the Respondent in relation to this issue of statutory interpretation is the High Court's decision in YZ Finance Co Pty Ltd v Cummings[13] ('YZ v Cummings') and the comments of Kitto J.
• [51] The discussion in YZ v Cummings was centred around the use of the word 'include' but in the course of the discussion, reference is made to the use of the word 'means' and that the use of 'means' indicates an exhaustive rather than expansive definition.
• [52] The Respondent has referred to the text, 'Statutory Interpretation in Australia'[14] and the discussion of the words 'include' and 'means' in that text. The discussion contained within the text reinforces the position that use of the word 'means' indicates an exhaustive rather than expansive definition.
• [53] It is submitted by the Respondent that non-compliance with the requirements of s 154(3) mandates a certain course of action and that the Commissioner must make a reassessment to impose transfer duty on the dutiable transaction, as if the concession had never applied to the transferee, lessee or vested person.
• [54] The Respondent does not accept that the facts of the Applicant's situation fall within the description of a natural disaster or that the situation came about due to the death or incapacity of a person.
• [55] The Respondent does not accept the Applicant's argument that a 'legal incapacity' arising from the sub-tenant's refusal to leave the property, falls within the definition of 'incapacity'.

• [56] The Tribunal accepts the Applicant's evidence that the reason she was unable to take up occupancy was due to the conduct of the sub-tenant in that they occupied the property beyond 3 February 2024, they failed to return the key and their occupation of the property necessitated repairs.

Application of the Relevant Legislative Provisions

• [57] The effect of s 154 of the Duties Act is that, to retain the benefit of the First Home Concession, a purchaser (the transferee) of residential land must not 'dispose' of the land before they themselves occupy it as their principal place of residence. Where a person purchases residential land that is subject to an existing lease arrangement, the provision deems that disposal of the land occurs at the same time that the transfer of the land to the purchaser takes place. The provision contains two potential exceptions to this occupancy requirement being:

(a) where an occupier (including a lessee) has exclusive possession of the land before the occupation date, s 154(2AA) provides that if the occupier vacates the land within the earlier of:

(i) the termination of the current term of the applicable lease; or

(ii) six months after the transfer date,

the transferee is not taken to have disposed of the land for the purposes of s 154(2).

(b) where a transferee does dispose of the land before the occupation date, the provision provides for an exception where that disposition occurs due to an 'intervening event'.

• [58] As noted above, Schedule 6 to the Duties Act contains the definition of 'intervening event' which is repeated here for ease of reference:

(a) a natural disaster, including, for example, fire and flood; or

(b) the death or incapacity of a person to whom section 153, 154, 246AJ or 291 applies; or

(c) another event prescribed under a regulation.

• [59] There have been no other events prescribed under regulation.
• [60] The Applicant submits that the concession should apply where 'ineligibility arises due to circumstances beyond a person's control' and that an incapacity in the nature of a legal incapacity falls within the meaning of 'incapacity'.
• [61] The Respondent's position is based upon the interpretation of the word 'means' in the definition. Its argument is that the legislation only covers factual situations falling squarely within the description of a natural disaster or a death or incapacity of a person.
• [62] The Tribunal has considered numerous matters where a review of a reassessment of duty arose in circumstances where the transferee of a property has been unable to comply with the occupancy requirements.
• [63] In the matter of Grist v Commissioner of State Revenue,[15] the transferee permitted the tenants to remain in the property beyond their intended departure date due to the tenants' particular difficulties in relocating, but there was no suggestion that an 'intervening event' had occurred.
• [64] In Ryan v Commissioner of State Revenue, Office of State Revenue,[16] the transferee purchased a property that was subject to a lease. When the tenants unexpectedly gave notice, the transferee arranged for a new tenant to occupy the property and did so in ignorance of the fact that the new tenancy was a 'disposal' in non-compliance with the occupancy requirements. Again, there was no suggestion that an 'intervening event' had occurred.
• [65] In Loutit & Anor v Commissioner of State Revenue,[17] the Tribunal had to consider whether the circumstances fell within the description of 'intervening events'. One of the transferees of a property was diagnosed with a medical illness that resulted in her and her co-transferee deciding to depart on an overseas holiday rather than to take up occupancy of the property in respect of which they had claimed a concession from duty. On learning from their insurance company that they would not be able to insure the property if it was left vacant, they rented the property for the duration of their overseas travels.
• [66] The Commissioner considered that renting the property was a 'disposal' and reassessed duty on the basis that there had been non-compliance with the occupancy requirement.
• [67] In their application to the Tribunal, the transferees argued that their circumstances fell within the definition of 'intervening event' in that it had been ill-health and incapacity that had prevented them from taking up occupancy within the requisite period. They sought to rely upon the definition of 'intervening event' as contained in Schedule 6 to the Duties Act and in particular, the reference at (b) to 'the death or incapacity of a person to whom section .... 154 applies'.
• [68] The Tribunal concluded that it was the knowledge that the property would be uninsurable if left vacant that had led to them putting a tenant into occupation rather than the diagnosis of ill health and incapacity.

• [69] The Tribunal considers that, based on well-accepted statutory interpretation principles, the use of the word 'means', when used in the context of a definition, is intended to be read as setting out precisely what is covered by the definition. In contrast, the use of the word 'include' could mean (however it would depend upon the precise piece of drafting) that the definition may include other situations not specifically referred to in the interpretation.
• [70] Based on this approach, it would only be where there was a natural disaster or a death or incapacity of a person, that an exception would arise in relation to the occupancy rules.
• [71] 'Natural disaster' is not defined in the Duties Act, however, it is defined in the Oxford Dictionary of English 3rd ed 2015 (online) as meaning 'a natural event that causes great damage or loss of life, such as an earthquake, hurricane or flood.'
• [72] Oxford Dictionary of English 3rd ed 2015 defines 'incapacity' 'as a want of capacity, inability, powerlessness, incompetence, natural disqualification.'
• [73] The Tribunal accepts the Commissioner's submission[18] that the words contained within the definition of 'intervening event' should be given their natural meaning.
• [74] Adopting standard statutory interpretation principles,[19] the Tribunal considers that the reference to 'incapacity' must be read in the context of the phrase in which it appears, that being 'of a person'. The Tribunal considers that the words 'incapacity of a person' are intended to be read as referring to an impairment due to illness, injury, mental infirmity or some other form of cognitive or physical impairment.
• [75] In terms of the application of the definition, the approach adopted by Member Allen in Loutit v CSR was to identify the precise cause for the non-compliance. Even though the ill health or incapacity of the transferee had resulted in the problem that led to a tenant being placed in the property, the actual impetus for the renting of the property was the concern in relation to the insurance.
• [76] In the Applicant's case, there appears to have been two obstacles to her taking up occupancy, one being the tenants holding over, but also the need for repairs to be undertaken to the unit.[20]
• [77] The Applicant has not put forward any evidence of a natural disaster or death or incapacity of person being, in the context of the legislation, the transferee or potentially, a tenant or sub-tenant. There is no evidence of the transferee suffering from a physical or cognitive incapacity and nor is there any evidence of incapacity of the tenant or sub-tenant.
• [78] The Applicant has referred[21] to 'legal incapacity' on her part in being unable to remove the tenants. The Applicant's reference to having 'legal incapacity' appears to have been based on her inability to progress a Notice to Leave. There is no suggestion on the part of the Applicant that she was not 'sui juris' or unable to protect her legal rights due to some cognitive or physical impairment.
• [79] The Applicant has not been able to identify any circumstances that would give rise to the application of the definition of 'intervening events' a prescribed by the Duties Act.
• [80] The Tribunal accepts the Commissioner's submission that there is no discretion available to the Tribunal to expand the narrow and limited definition of 'intervening events' and that the legislation does not provide a discretion to the Tribunal to otherwise relax the application of the Duties Act.
• [81] The Tribunal considers that the correct and preferable decision is that the Applicant did dispose of the residential land prior to the occupation date and the Commissioner's decision in regard to the reassessed Transfer Duty is affirmed.
• [82] The Commissioner did not impose Penalty Tax however an Unpaid Tax Interest ('UTI') amount was imposed. Section 54 of the TA Act provides for the payment of UTI and how it is calculated.
• [83] As at 30 May 2024, the UTI was an amount of $1,263.14.[22] There was a partial remission of UTI to exclude from the calculation the period in which the Commission was carrying out a consideration of the Applicant's objection.
• [84] In terms of UTI, the Applicant informed the Tribunal that she paid the UTI when paying the reassessed duty prior to lodging her application for review and is, in effect, seeking a reimbursement of the amount paid by her to the Commissioner.
• [85] The Tribunal has a discretion to remit UTI[23] and paragraph 9 of the Public Ruling TAA060.1.9 (the 'Public Ruling') sets out factors that can be considered by the Tribunal for the remission of UTI and paragraph 9(c) of the Public Ruling provides that a relevant factors is 'to the extent that the circumstances given rise to the imposition of UTI were within the control of the taxpayer.'
• [86] On behalf of the Commissioner, it is submitted that there is insufficient evidence before the Tribunal to decide what steps the Applicant took or attempted to take in relation to the holding over of the sub-tenant. It is submitted that there is no evidence to indicate whether the sub-tenant paid rent to the Applicant nor evidence regarding the steps that the Applicant took to remove the sub-tenant after her exchange with the real estate agent in or about 6 October 2023 and issuing of the Notice to Leave.
• [87] The evidence that the Tribunal can consider is the evidence that was submitted by the Applicant to the Commissioner in the Form QRO D2.4.[24] In that document, the Applicant states:

The existing tenant was a non-profit organization (Compass Housing) subletting the premises to other tenants. The sub-tenant delayed moving out and the existing tenant delayed further to organize repairs and bring the property back up to a reasonable condition prior to handing over.

• [88] There is insufficient evidence available to enable the Tribunal to conclude that occupation of the property by the required date was entirely out of the hands of the Applicant. There is no evidence to clarify the extent to which the requirement for repairs to be carried out was at the request of the Applicant and as to whether this requirement led to the delay in taking up occupancy by the required date.

• [89] The Commissioner's Objection decision is confirmed.
• [90] The Commissioner's decision to disallow further remission of the UTI is the correct and preferable decision.
• [91] It is again noted that the Applicant has already paid the reassessed duty and the UTI that was payable at that date.
• [92] The Review Application is otherwise dismissed.

[1] Duties Act 2001 (Qld) sch 2.

[2] Duties Act s 154(2).

[3] Statement of Reasons to the Notice of Decision 13 August 2024.

[4] Taxation Administration Act 2001 (Qld) s 69 ('TA Act'); Queensland Civil and Administrative

[12] [2015] QCA 198.

[13] [1964] HCA 12; (1964) 109 CLR 395, 403-4.

[14] Dennis Pearce, Statutory Interpretation in Australia (LexisNexis Butterworths, 9th ed, 2019) para 6.5.

[15] [2014] QCAT 259.

[16] [2012] QCAT 314.

[17] (Queensland Civil and Administrative Tribunal, Member Allen, 2018) ('Loutit v CSR').

[18] Respondent's Preliminary Submissions dated 31 January 2025 para 55.

[19] Avondale Motors (Parts) Pty Ltd v Federal Commissioner of Taxation [1971] HCA 17; (1971) 45 ALJR 280, 283 (Gibbs J).

[20] Email from the Applicant to the Commissioner's Delegate dated 6 June 2024.

[21] Applicant's Supplementary Written Submissions dated 28 August 2025.

[22] Letter from Queensland Revenue Office to the Applicant dated 30 May 2024 as at page 56 of the s 21 bundle.

[24] Form QRO D2.4 page 68 of the s 21 bundle.