Owusu v Commissioner of State Revenue [2026] QCAT 143

First Home Owner Grant and Other Home Owner Grants Act 2000 (Qld), s 25P, s 56, s 59, s 60, Schedule

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 18, s 19, s 20, s 21, s 22, s 23, s 24

Commissioner of State Revenue v Taske [2023] QCATA 121

Knuth & Ors v Department of Natural Resources, Mines and Energy [2022] QCATA 26

Mr S. Montgomery - Counsel instructed by the respondent's in-house legal department

[1] Ms Owusu wanted to have a house built on land she had purchased. She had entered a contract to have the house built. She applied to the Commissioner for a home builder grant under the First Home Owner Grant and Other Home Owner Grants Act 2000 (Qld) (the "Grants Act"). The contract she had with the builder met the requirements for a comprehensive home building contract for that purpose and so was an eligible transaction for the purposes of supporting her entitlement to a grant.

[2] Before any work under that contract had started Ms Owusu had also signed a preliminary agreement to have the house built by a different contractor. Given delays experienced in obtaining building approval, the builder terminated the first contract. Ms Owusu then signed a second building contract with the other contractor with whom she had already signed the preliminary agreement.

[3] The Commissioner refused Ms Owusu's application for a grant on the basis that, upon termination of the first contract, notwithstanding her having entered the second contract, she no longer satisfied the criteria of having an eligible transaction which supported her entitlement to a grant. Ms Owusu objected to that decision. It was upheld. She then sought review in this Tribunal. The issue was whether the second contract was a 'further contract' to the first contract such that together they satisfied the requirement for a 'comprehensive home building contract' and thus an eligible transaction.

[4] Ms Owusu was unsuccessful in this Tribunal. Given that work under the contract was never commenced, and thus could never be completed in part such necessitating entry into the second contract to complete the work, the second contract could not be considered as being a further contract. It did not matter that the work was not completed because it never started. The Second Contract stood on its own. It was not a 'further contract', and because it did not otherwise independently meet the requirements of a 'comprehensive home building contract' Ms Owusu did not have an eligible transaction. Thus, she was not entitled to a home builder grant. Accordingly, the decision arising from her objection was confirmed.

[5] It was common ground that there was no factual dispute for consideration and decision by this Tribunal. The only issues were matters of law. Accordingly, no oral evidence was presented at the hearing, the relevant documentary material being tendered by consent, namely:

(a) The Commissioner's documents provided under s 21 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the "QCAT Act");[1]

(b) The Commissioner's Outline of Submissions;[2]

(c) Ms Owusu's Submissions dated 4 August 2025;[3]

(d) Ms Owusu's Outline of Submissions dated 6 October 2025, excluding a Zip-file of documents attached thereto;[4]

(e) A bundle of documents given as a Zip-file attached to Ms Owusu's Outline dated 6 October 2025;[5]

(f) A copy of an Enduring Power of Attorney of Albert Owusu appointing Ms Owusu as his attorney;[6]

(g) Various documents tendered by Ms Owusu during the hearing;[7]

(h) A statutory declaration of Ms Owusu sworn 25 August 2021.[8]

[6] On 5 March 2021, Ms Owusu entered a contract for purchase of vacant land. It was an off-the-plan purchase, the land not at that time the subject of a registered title (the "Land").[9]

[7] On 19 March 2021, Ms Owusu entered a contract with Ingenious Homes for construction of a house on the Land (the "First Contract").[10] Thereunder:

(a) payment of the deposit of $13,105.20 incl GST was due "at settlement of land or on Council Approval";

(b) the starting date was defined as being amongst other things, 10 business days after the issue of approved plans by the Assessing Certifier; and

(c) the 'Assessing Certifier' was defined as being the private certifier or Local Government Authority responsible for granting the relevant building approvals and authorisations for the Works;

(d) Ingenious Homes was nominated as being the party responsible for obtaining building approval;

(e) the express terms contained the following clause:

1. Termination for lack of building approval

10.1 Either party may give a written notice to the other terminating this Contract if, without fault on the part of the party giving the notice, any permission, consent or approval necessary for the commencement of building has not issues within 3 months of the date of this Contract or such further period extended by the parties' agreement in writing.

10.2 ...

[8] On 29 March 2021, Ms Owusu applied to the Commissioner for a grant under the Grants Act, namely a 'Home Builder Grant' seeking a grant to assist her in meeting the cost of construction of the house (the "Application").[11]

[9] Within the Application a question was raised, to which Ms Owusu answered 'Yes':

Have you entered into a contract between 4 June 2020 and 31 March 2021 for one of the following?

• A comprehensive home building contract to build a new home as your principal place of residence where the value of the house and land does not exceed $750,000 (including GST).
• ...

[10] On 28 October 2021, title of the Land was created, with Ms Owusu subsequently becoming its registered owner on 30 November 2021.[12] However, notwithstanding the condition of the First Contract regarding when payment of the deposit thereunder became due "at settlement of land", there is nothing contained in the material before the Tribunal showing that any such deposit was paid.

[11] On 1 March 2022, Ms Owusu signed an 'Intention to Purchase' agreement with Ausmar Homes, and paid Ausmar Homes $3,000 thereunder.[13]

[12] On 30 May 2022, Ms Owusu received an e-mail from Ingenious Homes stating it to be terminating the contract under Clause 10 of the contract terms.[14]

[13] On 21 June 2022, acting on Ms Owusu's instructions, her solicitor sent a letter to Ingenious Homes, expressed under the banner of 'Without prejudice, save as to costs' wherein Ms Owusu presented what was said to be an 'Offer to settle' which contained amongst other things that the First Contract is to be mutually terminated.[15]

[14] On 10 July 2022, Ms Owusu sent an e-mail to her solicitor in which the following statement appears:[16]

... I did receive notice from Ingenious that they intended to cancel the contract from their side, as there had been communication breakdown and restrictions on variations.

...

At this point I would like to move on and do not intend to construct a home with ... Ingenious Homes. ...

[15] On 12 July 2022, solicitors for Ingenious Homes sent a letter to the solicitors for Ms Owusu, again on a 'without prejudice' basis expressed to be in response to the solicitor's letter of 21 June 2022, in which the following appears:[17]

... Our client had a clear and unequivocal express legal right to terminate the Build Contract on 30 May 2022, and our client lawfully exercised those rights in accordance with Condition 10 of the Build Contract.

Our client attempted to obtain instructions from your client on numerous occasions from early March to late May however your client failed to respond to our client with any instructions, as such, our client elected to lawfully terminate the Build Contract.

[16] On the same day, Ms Owusu sent an e-mail to her solicitor in which the following appears:[18]

I have now located the e-mail I received from them and have attached that to this e-mail. ...

They are citing Clause 10 to terminate the contract and have started (sic) the contract is now at an end.

My understanding this is legal as the building contract had not commenced, money had not be (sic) exchanged and the time frames had lapsed - with reference to paragraph 2.1 and 2.2.

Thus to my knowledge this is over ...?

Please advise.

[17] On 23 July 2022, Ms Owusu's solicitor sent an e-mail to her in which the following advice was given:[19]

Matter Summary

We confirm that:

1. On 21 June 22, you instructed our firm to send the attached correspondence to the other side (which, broadly, sought mutual termination of the parties' contract); but
2. The attached chain of e-mails suggests that the other side unilaterally terminated the parties' contract pursuant to clause 10.1; and
3. We received the attached correspondence from the other side's solicitor last Thursday, 14 July 2022, which states that:

(i) the other side lawfully terminated the contract pursuant to clause 10 of the parties' contract;

(ii) the other side do not own the copyright to the plans attached to the parties' contract; and

(iii) Collins House Property Group own the plans attached to the parties' contract.

Prior to advising on next steps (if any), we ask that you please confirm immediately whether you intend on utilising the plans owned by Collins Property Group.

1. clause 10.1, a party is permitted to terminate a contract, without fault by any party, by giving notice that the relevant project lacks building permission, consent, or approval;
2. clause 10.2, where a contract is terminated under clause 10.1, the parties' obligations remain the same as if the contract had been terminated under clause 5.3, where the parties are bound by clauses 5.4, 5.5 and 5.6 of the contract;

(i) must refund to you any deposit or money paid to the other side;

(ii) is permitted to deduct from the above monies any costs incurred by the other side, with your authorisation, including fees paid for plans, drawings etc;

(iii) is otherwise required to hand over all documents relevant the above deductions.

By reason of the above matters, and consistent with clause 5.6 of the contract, the parties have no further liability to each other.

[18] On 25 July 2022, Ms Owusu sent an e-mail to her solicitor wherein she states:[20]

I accept that Ingenious Homes Pty Ltd have terminated the Building Contract on their side using Clause 10.1. ... my understanding is the contract has ended.

[19] On 2 September 2022, Ms Owusu sent a letter to the Commissioner entitled 'Statement of confirming reasons for delay in construction commencement' wherein the following appears:[21]

... construction has been delayed for the following reasons:

1. ... there were delay (sic) with the land registration process and I was only able to settle the land purchase in November 2021, a delay of 8 months.

2. During that time, the cost of construction the new home rose significantly and the builder sought to exit the contract. The builder did not want to engage a variation contract and could not perform variations to modify areas of the home for a wheelchair user. Thereby (sic) withdrawing from the contract and I have since engaged a new builder to construct a home on my land.

I have just received new (sic) draft of the new building contract that I will sign this month.

I anticipate that construction will start by December 2022 or in the New Year of 2023.

[20] On 25 September 2022, Ms Owusu entered a contract with Ausmar Homes to construct a house on the Land (the "Second Contract").[22]

[21] On 18 May 2023, a Revenue Officer for the Commissioner sent an e-mail to Ms Owusu in which the following appeared in reference to the Application:[23]

I am currently unable to determine your eligibility as the following supporting document/s is/are still required:

I note you have advised you have terminated your original contract with Ingenious Homes, and entered into a further contract with Ausmar Homes Pty Ltd. The Commissioner requires the following to proceed with your application;

• A copy of your first and original contract dated and signed by the builder and applicant/s including any special conditions, plans, specifications, annexures and variations.

• A copy of the Deed of Rescission, Solicitor's letter, or other correspondence cancelling or changing the original contract.

• Confirmation of the date the original contract was cancelled

• Any correspondence to, and replies from the builder/vendor involved, or their legal representative, relating to the reasons for, and the decision to cancel the original contract.

...

[22] On 22 September 2023, another e-mail was sent on behalf of the Commissioner to Ms Owusu in which the following statement appears:[24]

All the supporting document for your HomeBuilder Grant application have now been provided and your application has been submitted for processing.

[23] On 6 November 2023, a Revenue Officer for the Commissioner issued a letter to Ms Owusu informing her that her Application was refused (the "Original Decision"). It contained the following statements:[25]

Paragraph 1.b of the Administrative Direction confirms that a comprehensive home building contract made by the freehold owner between 4 June 2020 and 31 March 2021, to have a new home built on the land is an eligible transaction. This paragraph also confirms that construction is to commence on the contract date or within 18 months of the contract date.

Paragraph 14 of the Administrative Direction defines a comprehensive home building contract to mean a contract under which a builder undertakes to build a home from the start of building work to a point where the home is ready for occupation and, if for any reason, the work to be carried out under the contract is not completed, includes any further contract under which the work is to be completed.

On 19 March 2021, you entered into a comprehensive home building contract with Ingenious Homes Pty Ltd ... (first contract).

Documentation provided as part of your application also confirms this contract was cancelled. You provided a letter from your solicitor and a letter from the builder's solicitor confirming that the contract was cancelled. You and the builder mutually terminated the first contract, having not agreed to variations to the original contract. As these circumstances are not considered outside of your control, any subsequent contract cannot be considered as a further contract under paragraph 14.

On 25 September 2022, you entered into a new building contract with Ausmar Homes ... (second contract).

The second contract is not a further contract to complete works originally to be carried out under the first contract. Furthermore, the second contract was not made between 4 June 2020 and 31 March 2021, so it is not considered an eligible transaction. Neither contract is an eligible contract for the Grant, and therefore your application is refused.

[24] On 6 January 2024, Ms Owusu lodged with the Commissioner an objection to the Original Decision (the "Objection").[26] The content of that objection included the following statements:

...

My building contract was terminated by Ingenious Homes citing Condition 10, where the builder can terminate the building contract when construction has not commenced. ...

Termination of the contract was inevitable as the Builder had more power in the contractual relationship. ... I needed to build an accessible property, but the builder could not be forced to enter into variations. ... The only solution was to mutually agree to discontinue the project so that I could be released from any financial liability and seek a different builder to build my new home. I cannot control decisions made by Ingenious Homes Pty Ltd.

...

The second contract with Ausmar Homes Pty Ltd, was entered into after scouring the market for a builder that could building (sic) accessible home (sic). The second contract completes what I had intended to do, which was to build a new home with accessible features within my budget. ...

[25] On 15 March 2024, a Senior Review Officer for the Commissioner issued the decision on the Objection, confirming the Original Decision (the "Objection Decision").[27] The reasons for the Objection Decision included the following in reference to the reasons for the Original Decision wherein the decision-maker on that occasion expressed the view that the mutual termination of the First Contract was because of a failure to have agreed to variations and as such circumstances not considered to be outside of Ms Owusu's control:

Paragraph 14 of the home builder direction allows for the acceptance of further contracts where work under the original contract is not completed.

The Commonwealth has recommended the Commissioner only accept further contracts in limited circumstances. Specifically, the Commonwealth recommends further contract should only be accepted:

1. where the builder (a natural person) dies before building work under the original contract is completed;

2. where the builder (company or natural person) enters liquidation/bankruptcy before the building work under the original contract is completed; and

3. in other exceptional circumstances deemed appropriate by the Commissioner.

...

On review, I accept that you had limited decision-making capacity over the actions of Ingenious Homes. You were left with no choice but to accept their termination of the first contract and try to engage another builder (albeit outside of the eligibility period). Therefore, it is appropriate to consider whether the second contract is a further contract of the type contemplated in paragraph 14 of the home builder direction.

Is the second contract a further contract?

The phrase 'if for any reason, the work to be carried out under the contract is not completed, includes any further contract under which the work is to be completed' in paragraph 14 of the home builder direction connotes a further contract where the scope of works must only be for the unfinished works, originally to be carried out under the first contract, to bring the home to practical completion. That is, works must have commenced under the original contract but for some reason ... the builder is unable to complete the works. In such cases, the further contract is considered an extension of the original, which preserves the original contract commencement date (and grant amount. ...

Based on the information and evidence available to me, I am not satisfied Ingenious Homes had commenced the contracted works by the time the first contract was cancelled. This is supported by the following:

1. The first contract was terminated pursuant to condition 10 (termination for lack of building approval). Without building approval, Ingenious Homes could not have lawfully commenced building work under the first contract.

2. ...

3. ...

4. In an email to your solicitor dated 12 July 2022, you state: 'My understanding is this is legal as the building contract had not commenced, money had not been exchanged and the time frames had lapsed.'

Based on the above evidence, I am not satisfied the second contract is a 'continuation' of any partially completed works under the first contract. Rather, it is a standalone comprehensive home building contract between you and the builder to undertake your construction project. Consequently, the second contract is not a further contract for the purpose of paragraph 14 of the home builder direction.

As neither contract is an eligible transaction (because the first contract was terminated before completion, and the second contract falls outside the eligibility period and is not a further contract), the Commissioner was correct to refuse your application.

... the Commissioner does not have the power or discretion to authorise payment of the grant if the transaction for which the grant is sought is not an eligible home builder transaction under the home builder direction (which your transaction is not for the reasons outlined above).

[26] On 15 May 2024, Ms Owusu applied to this Tribunal for a review of the Objection Decision. Apparently seizing on that which the decision-maker of the Objection Decision had to say about 'exceptional circumstances' in that part of the reasons I extracted earlier, the premise for that application expressed as being:

The Commissioner has not accepted my second building contract as a further contract to build my home. When in reality, the contract (sic) constitute one project, as I had purchased vacant land and needed a home with accessibility modifications as I was a carer for my father and we lacked suitable housing. Legally I was also required to enter into a second building contract with a new builder as the first builder owned the home plan.

I want the Commissioner to recommend accepting my second building contract as a further contract, that was entered into under exceptional circumstances ... The Senior Review Officer advised that the Commission (sic) has capacity to accept further contract under limited circumstances, namely:

1. ...

2. ...

3. in other exceptional circumstances deemed appropriate by the Commissioner.

I would like to Commission (sic) to review my case under (c), as I experienced exceptional circumstances necessitating a further contract was (sic) signed after the contract eligibility dated to complete building my home on vacant land.

[27] Whilst Ms Owusu's application to this Tribunal was premised on the Second Contract being a further contract, such which she asserts should be so based on 'exceptional circumstances', in the presentation of her case at the hearing she seemingly sought to expand the ambit of her argument to have the Objection Decision:[28]

... set aside on the grounds that the Respondent failed to properly exercise the discretion available to them (sic) as the Administrator of the HB Grant.

[28] This was somewhat of an ambiguous statement. It was unclear as to whether she was asserting the 'exceptional circumstances deemed appropriate by the Commissioner' which she referred to in her application for review was the discretion to which she was referring, or whether it was some other discretionary power she was saying the Commissioner had given the way she also expressed the 'Issues' to be, namely:[29]

Whether the home was purchased off the plan (Issue one).

Whether the second contract is a replacement of the first contract (Issue two).

Whether the Respondent erred in their (sic) decision-making by failing to properly exercise their (sic) discretion, having regard to the Applicant's particular circumstances (Issue three),

Whether it is reasonable to deny payment of the grant when by doing so, the applicant will experience an unjust outcome or indirect discrimination (Issue four).

[29] This is an administrative review proceeding to be decided under the provisions of the Grants Act. The jurisdiction of this Tribunal arises under s 59 therein, such to be read in conjunction with s 17 to s 24 of the QCAT Act.

[30] The role of the Commissioner in this proceeding is not to advocate for the correctness of the decision, but rather to assist me in my task of being required to make the correct and preferable decision.[30] In effect, as the Member constituting this Tribunal for the purposes of the review, I stand in the shoes of the decision-maker of the Objection Decision. That being so, I am not concerned with the process by which the Objection Decision was reached and whether any error was made in any of the steps taken by the decision-maker.

[31] Following consideration of the relevant material, I may confirm or amend the decision, set aside the decision, and substitute my own decision, or set aside the decision and return the matter for reconsideration by the decision-maker.[31]

[32] In a review proceeding in this Tribunal, subject to an express legislative requirement to the contrary, the review must:

(a) produce the correct and preferable decision;[32]

(b) be by way of a 'fresh hearing on the merits', thus enabling an applicant to present to the Tribunal grounds for review, evidence, and argument, that was not before the maker of the decision under review;[33] and

(c) be by reference to the law as it prevailed at the time of review.[34]

[33] It is here that this review differs from most such proceedings in this Tribunal under various legislative regimes. Under the Grants Act, this review must be done:

(a) by way of a reconsideration of the evidence before the Commissioner when the Objection Decision was made, unless the Tribunal considers it necessary in the interests of justice to allow new evidence;[35]

(b) in accordance with the same law that applied to the making of the Original Decision;[36] and

(c) limited to the grounds of the Objection unless the Tribunal otherwise orders.[37]

[34] It must be recalled that Ms Owusu's Application was not 'First home owner grant', but rather for a 'Home builder grant'. The former are administered under Part 3 of the Grants Act whereas the latter are administered under Part 3B of the Grants Act. Under that Part 3B, the Commissioner is responsible for administering the 'home builder direction',[38] such which is defined in the Act to mean (the "Administrative Direction"):[39]

the administrative direction called 'Australian Government HomeBuilder Grant - Queensland' made by the Minister and published on the department's website.

[35] Noting that which I stated in paragraph [33](b) herein in terms of the relevant law to be considered, the relevant direction is that which was current from 3 May 2023.

[36] As is relevant in this proceeding, the following provisions are found within the Administrative Direction:

Eligible transactions

1. Each of the following transactions are eligible transactions for payment of the grant:

2. ...;

3. a comprehensive home building contract made by the freehold owner of land in Queensland, or a person who will, prior to completion of the comprehensive home building contract be the freehold owner of land in Queensland, to have a new home built on the land, 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 18 months of the contract commencement date;

4. ...

Definitions for eligible transactions

1. Construction commencement date means:

2. for ... a comprehensive home building contract - the date when excavation and site preparation works for the eligible transaction start; or

3. ...

4. ...

5. ....

6. Contract commencement date means the date when the contract is made.

7. Completed or completion means:

8. ...;

9. for a comprehensive home building contract - when the building is ready for occupation as a home and a final inspection certificate under the Building Act 1975 has been issued for the building; or

c. ....

1. A comprehensive home building contract means a contract under which a builder undertakes to build a home from the start of building work to the point where the home is ready for occupation and, if for any reason, the work to be carried out under the contract is not completed, includes any further contract under which the work is to be completed.

Eligibility criteria for applicants

Criterion 1a - Single applicant must be the registered freehold owner of the property

...

1. Subject to paragraph 42, if an application relates to a comprehensive home building contract, the applicant must be the sole registered freehold owner of the property as at the contract commencement date, or will be the sole registered freehold owner of the property no later than laying of foundations or when the first progress payment is made.

Payment of a grant upon application

1. A grant is payable on an application under this administrative direction if:

2. ...

3. the transaction for which the grant is sought is an eligible transaction; and

4. the applicant ... submit all supporting documentation required by the Commissioner by 30 June 2025 (the sunset date);

5. ... ; and

6. ...

7. subject to paragraphs 42 and 43, for an eligible transaction that is a comprehensive home building contract - when the foundations have been laid and the first progress payment has been paid to the builder; or

8. ....

9. A grant may be payable for an eligible transaction that is a comprehensive home building contract despite paragraphs 23 ..., if:

10. the freehold title had not been registered in the name of the applicant or applicants by the time foundations were laid and the first progress payment was paid to the builder, due to factors that were outside of the control of the applicant or applicants, such as third party delays with lodging or registering instruments of title; and

11. the applicant or applicants' freehold title will be registered prior to completion of the comprehensive home building contract.

12. A grant payable under paragraph 42 is payable when the freehold title in the property is registered.

Conditions generally

1. The Commissioner may authorise payment of a grant on the reasonable conditions the Commissioner considers appropriate.

[37] Notwithstanding the way in which Ms Owusu framed her case in the hearing, based on the relevant facts and the relevant law as I have noted both herein, there was a singular narrow issue to be determined in in this review, namely:

Is the Second Contract a 'further contract' for the purposes of the Grants Act such that it is an eligible transaction and so can be the basis for a grant being awarded to Ms Owusu?

[38] There was however a threshold issue that needed to be dealt with first given the way Ms Owusu presented her case and the additional documentation she tendered at the hearing purporting to be relevant evidence that this Tribunal should consider, such being the extent to which references to documents in her Outline of Submissions and documents contained in the Zip-file attached thereto[40] went beyond what was before the decision-maker when the Objection Decision was made (such as should that as contained in the Commissioner's s 21 documents),[41] and those documents she tendered at the hearing.[42]

[39] In presentation of her case before this Tribunal, Ms Owusu went beyond the ambit of her application for review, it being framed on the singular issue as to whether the Second Contract was a further contract for the purposes of the Administrative Direction, asserting that it should be because of 'exceptional circumstances'.

[40] I accept that on its face such could be read as asserting there was a discretion afforded the decision-maker that should be exercised, thus explaining why Ms Owusu reframed her case in her submissions as I noted it in paragraph [27] herein to raise the issue of an asserted failure by the Commissioner to have properly exercised a discretion. This was in effect what she identified as Issue Three as I noted it in paragraph [28] herein. It was however an integral part of what she framed as Issue Two, together in effect being the sole issue I identified as arising on the relevant facts and the relevant law.

[41] But her submissions about what she framed as Issue One and Issue Four went well beyond that ambit of her application for review, and moreover went well beyond the grounds of the Objection. Similarly, the additional material she submitted for consideration by this Tribunal as I noted it in paragraph [23] herein went well beyond those limits.

[42] As I noted the relevant law in sub-paragraphs [33](a) and [33](c) herein, this Tribunal is afforded a discretion to allow same on a review, thereby potentially expanding that which was the subject of the Objection against which the Objection Decision was made.

[43] In this instance I did not see any reason to permit Ms Owusu an entitlement to such an expansion, whether it be by way of a reframing of the issues to encompass Issues One and Four as she presented them, or the additional evidence she was asking the Tribunal to consider. Those issues and that evidence were irrelevant to what this Tribunal was required to decide.

[44] Whilst the contract for purchase of the Land could properly be said to be an 'off-the-plan' contract, and the house the subject of either the First Contract or the Second Contract was to be constructed on that land, it does not make either of those building contracts an 'off-the-plan' contract. The two construction contracts could only ever be a 'comprehensive home building contract' as that term appears in the Administrative Direction. To the extent there is a connection between such a construction contract and an off-the-plan purchase contract for land, such is dealt with under paragraph 23 read together with paragraphs 42 and 43 of the Administrative Direction. To the extent Ms Owusu made submissions to me about the delay in the registration of the Title to the Land, and her submissions about an off-the-plan contract, they were misconceived and without substance.

[45] As to the argument about Ms Owusu experiencing indirect discrimination if she is to be denied payment, and thus the asserted issue or reasonableness in decision making to be considered, it is also misconceived in terms of this review proceeding.

[46] If Ms Owusu holds the view she is or has been somehow discriminated against in terms of her attempts to obtain a grant under the Grants Act, recourse is available to her under the Anti-Discrimination Act 1991 (Qld) and/or Federal equivalents. Such an argument has no place in this review proceeding.

[47] To the extent she otherwise argues what is asserted to be an 'unjust outcome' which should be avoided if the decision were to be a 'reasonable' one, thereby seemingly suggesting that there is a discretion to be exercised, such is also misconceived. As I discuss it later herein, there is no broad discretion afforded a decision-maker under the Administrative Direction or otherwise under the Grants Act. As Counsel for the Commissioner expressed it in the hearing, the entitlement to a grant is a 'strict test'. It is not a question of what is reasonable in the circumstances. Either the criteria for payment of the grant is met, or it is not.

[48] That being so, the sole issue for determination before me was whether a singular criterion had been met, namely whether there was an 'eligible transaction', more particularly the existence of a 'comprehensive home building contract', as those terms appear in the Administrative Direction. The sub-issue to that, and on which that issue was to be determined, is whether the second contract was a 'further contract' as that term appears in the definition of a 'comprehensive home building contract'.

[49] It is only here that the question of discretion arises to the extent Ms Owusu raised it in her application, namely whether the Second Contract should have been accepted as such a further contract in her circumstances which she asserted should be accepted as 'exceptional'.

[50] I am in no doubt that the First Contract was a comprehensive home building contract and as such an eligible transaction. There was no suggestion otherwise in the material filed or raised in oral submissions.

[51] The singular issue was whether the Second Contract was a 'further contract' as that term appears within the definition of a 'comprehensive home building contract'. For the reasons I explain here, it was not such a contract.

[52] It must be recognised that under the terms of the Administrative Direction, there is only one comprehensive home building contract. There cannot be more than one. It is the contract under which a builder undertakes to build a home from the 'start of the building work' to 'the point where the home is ready for occupation'. When the Administrative Direction is read as a whole, the 'start of the building work' must be the 'construction commencement date' and 'the point where the home is ready for occupation' must be when the work is 'completed'. But the definition of a 'comprehensive home building contract' is extended in circumstances where 'for any reason, the work to be carried out under the contract is not completed', then the relevant contract may include any 'further contract under which the work is to be completed'. On any reading of this definition such can only mean that work must have started under the contract and then for some reason not been completed such that it necessitated a further contract being entered into to have the unfinished work completed.[43]

[53] When understood in that way the 'contract commencement date' and the 'construction commencement date' are both preserved to the extent such arise from the first contract entered, such being necessary for satisfying the criteria for an 'eligible transaction' as provided for under paragraph 1(b) of the Administrative Direction.

[54] But that is not what occurred here. Work under the First Contract never commenced. Thus, it could never have been completed. But more critically, could never have been for some reason 'not completed' to dictate the need for the Second Contract to complete the work unfinished under the First Contract.

[55] It is not sufficient to be able to show that for any reason work under the First Contract never commenced, and thus there was the need for the Second Contract to have that constructed which was not done under the First Contract. If that was to be so, the definition of a comprehensive home building contract could easily have included the phrase 'if for any reason, the work to be carried out under the contract is not started or otherwise not completed, includes any further contract under which the work is to be started and/or to be completed' the underlined words being the necessary addition.

[56] But the express provisions of the Administrative Direction do not contain those words. Yet, Ms Owusu's case is framed in a manner that, because of what she says were her 'exceptional circumstances', the definition should be construed by inserting such words by way of the exercise of a discretion said to be afforded the Commissioner, and in turn the decision-maker of the Objection Decision and then this Tribunal as now being the effective decision-maker on review.

[57] I am in no doubt that Ms Owusu had to deal with circumstances that are exceptional when considered in comparison to what most of society would consider the usual when it comes to getting a house built, she being focussed on the needs of her paraplegic father and certain aspects of the building that would need to be incorporated into the house to meet those needs. By reference to what I discussed with the relevant facts to the extent she had communicated with the Commissioner's office at various times demonstrate that she had numerous challenges along the way. But that does not make her circumstances exceptional to the extent it might be said that the Commissioner was seized of some discretion to accept the Second Contract as a further contract.

[58] Noting that what this Tribunal is empowered to consider is to be limited to grounds of the Objection before the decision-maker below unless otherwise permitted by this Tribunal, a permission I have already said would not be granted, as I noted it in paragraph [24] her submission was that termination of the First Contract was inevitable because she needed to build an accessible property but Ingenious Homes could not be forced to enter into variations, such does not make her circumstances exceptional for two reasons.

[59] Firstly, she entered the First Contract to have a house built to a specific design. If that design did not suit her needs, she should not have entered the contract. It is not an argument to then say Ingenious would not agree to variations to incorporate the accessibility needs. She could have and should have had those needs incorporated into the contracted works from the outset, or alternatively ensured that the terms of the contract provided her with a mechanism to require Ingenious to accept her instructions to vary the works. To the extent she suggested in her submissions that there was some misleading or deceptive conduct on the part of Ingenious Homes or others that led her to enter the contract, such are mere bare assertions that would need to be tested and proven if they were to be accepted as having any relevance at all. Such goes well beyond the powers of a decision-maker under the Grants Act.

[60] Secondly, it cannot be overlooked that whilst the First Contract was still on foot, and well before Ingenious Homes had terminated that contract, Ms Owusu had already acted in a manner entirely inconsistent with the First Contract being in existence. As I noted it in paragraph [11] herein, she had signed a preliminary agreement with Ausmar Homes and paid them funds thereunder, such being the precursor to having Ausmar build her the requisite house. This action demonstrated unequivocally an absence of Ms Owusu remaining ready, willing, and able to perform the First Contract, such which would have enabled Ingenious Homes to terminate that contract without recourse to the circumstance it ultimately lawfully relied on to terminate it. This is action which was entirely under her control.

[61] Moreover, she stated on 10 July 2022 that she did not intend to construct the house using Ingenious Homes, and so she sought to have the First Contract terminated by a mutual discharge. Notwithstanding the communications I noted in paragraphs [13] and [15] herein where expressed as being 'without prejudice', such being effectively a privilege of confidentiality in terms of those documents that could only be mutually waived and accordingly not documents that might ordinarily be relied on to show relevant conduct, in this instance Ms Owusu has sought to rely on them to show what is alleged to be exceptional circumstances and accordingly to that extent any privilege attached to those documents would fall away under the exception to the without prejudice privilege, being that the documents show independent facts having legal consequence. That fact being once again action taken by Ms Owusu that was entirely under her control, the legal consequence being it could not amount to an exceptional circumstance to the extent any such circumstance may be a relevant factor under the Grants Act. Also, it cannot be overlooked that on 25 July 2022 she expressed her acceptance that Ingenious Homes had terminated the contract, doing so without in any way challenging it, such consistent with her having earlier demonstrated an absence of remaining ready, willing, and able to perform the First Contract.

[62] The entirety of Ms Owusu's conduct was inconsistent with what should have occurred to preserve her entitlement to the grant she had applied for. It may be the case that Ms Owusu received inadequate advice about her options in dealing with Ingenious Homes to have preserved that entitlement. It may also be the case that her dealings with Ingenious Homes and others that led to her entering the First Contract were questionable in terms of what she might have been led to understand. In either instance she might have a right of recourse against others under the law. But even if that is so it does not make her circumstances exceptional for the purposes of whether the Second Contract should be accepted as a further contract for the purposes of her being entitled to the grant. This is simply because it is not such a contract for the reasons I discussed earlier, but for completeness three more things should be said.

[63] Even if it was to be thought that the Second Contract was simply a replacement of the First Contract, and so not a 'further contract', it could not be an eligible transaction because it was entered outside of the timeframe provided for under paragraph 1(b) of the Administrative Direction.

[64] Nor is it relevant to say, as Ms Owusu seems to suggest in that which I extracted in paragraphs [24] and [26] herein that the Second Contract was to complete what she started and so constituting one project. Whilst that might be so, her intentions to achieve the construction of an accessible home is not that which was 'not completed' to dictate the need for a further contract as that phraseology appears in the definition of a 'comprehensive home building contract' under the Administrative Direction.

[65] Finally, as to the bare assertion that Ms Owusu seemed to otherwise be making that there was some discretion to be exercised to afford her an entitlement to the grant and so avoid what she asserted to be an 'unjust outcome', if there is a discretion it is one which must be found either in the express provisions of the Grants Act or the Administrative Direction. No such discretionary power exists other than what is found in paragraph 51 of the Administrative Direction whereby any reasonable conditions considered appropriate can be imposed on authorisation of the payment of a grant. But for such a discretion to be exercised, it requires the entitlement to a grant to exist as a foundational fact, such which cannot occur absence the existence of an eligible transaction. Accordingly, that discretionary power is irrelevant.

[66] It was irrelevant that there was a delay in registering the title of the land and/or otherwise issues existed that gave rise to delays in Ingenious Homes being able to obtain building approval, the latter being the ultimate cause of termination of the First Contract. Similarly, it is irrelevant that Ms Owusu's 'project' for which she sought payment of the grant was to build an accessible house. The challenges that she faced in terms of achieving that were not in any way exceptional. None of them were outside her control.

[67] The material before this Tribunal shows that Ms Owusu failed to preserve her entitlement to a grant when she was faced with issues concerning the First Contract. The result is that by her own actions she was without an eligible transaction upon which an approval of the grant relied. For all the reasons discussed herein, the only outcome of this review is that there must be a decision which confirms the Objection Decision. An order was made to that effect.

[5] Ex 5. The Commission had helpfully created an Index of these document, such which was received in the hearing and marked as a document for identification 'MFI - A', excluding what is shown therein as being Document 54 at pages 304-312. That Index also included references to documents referenced in Ms Owusu's submissions although not contained in her Zip-file, but also referencing where these documents appeared in its s 21 bundle which became Ex 1 in the hearing.

[9] Ex 1 p 319. A slightly different version appears in Ms Owusu's material at Ex 5 p 126, it not containing the 'Contract Date' or the name of the Seller's Agent, both of which are shown on the version in the Commissioner's material. These differences are not material to this proceeding, it being common ground the contract was entered on 5 March 2021 being the Contract Date shown on the version in the Commissioner's material.

[10] Ex 1 pp 280- 318. Ex 5 pp 195-233.

[14] There is no document contained in either party's material before the Tribunal which shows this to be the case. The fact is as drawn from Ms Owusu's submissions - see Ex 4 para 40.

[15] Ex 5 p 287. Evidence of that letter having been prepared and sent under Ms Owusu's instructions is contained in the body of an e-mail to her from her solicitors on 23 July 2023, a copy of which appears at Ex 5 p 291. This letter also appears in the Commissioner's material at Ex 1 p 272.

[17] Ex 1 p 94. I pause here to observe that Ms Owusu submits that on this date Ingenious terminated the contract - see Ex 4 para 42 - although on any reading of the letter it is in reference to termination that occurred on 30 May 2022.

[18] Ex 5 p 293. Ex 1 p 267. The attachment referred to therein does not appear in either party's material. I infer it is a reference to the e-mail of 30 May 2022 is referenced in these reasons under the heading Relevant Facts.

[19] Ex 1 p 266. The bold and underlining emphasis is as it appears in the document. The attachments referred to therein do not appear as part of the bundle of documents, this e-mail appearing within a chain of e-mails which appears to have been bundled by Ms Owusu as an e-mail to herself on 22 February 2023 which I infer was part of her response to the Commissioner's request for further documentation - see the entries later within this section for 18 May 2023 and 22 September 2023.

[20] Ex 5 p 291. Ex 1 p 265.

[26] Ex 1 pp 22-162. The Objection was lodged late however the Commissioner allowed the requisite extension of time as permissible under s 56(4) of the Grants Act and accordingly the late submission became a permissible objection.

[34] Knuth & Ors v Department of Natural Resources, Mines and Energy [2022] QCATA 26, [42].

[43] Consider further the reasoning of the Appeal Tribunal in Commissioner of State Revenue v Taske [2023] QCATA 121, [17] and the cases in which it has been considered.