On 19 October 2011 October Meryl Mitchell signed up for a $405k unit at Australand’s Watermarque development on the Hamilton waterfront with a 24 month settlement.
Construction started on the building in March 2012 and finished in August 2013.
At the time of contract, Mitchell owned a home in Maleny she intended to sell but with delays to that strategy, needed bridging finance for the unit purchase. Her son Stuart guaranteed the loan the financier on terms that required him to become a co-owner.
In October 2013, she and Australand entered into a Deed of rescission and on the same date a new contract on identical terms was signed up this time with son Stuart included as buyer of a 1% interest.
They duly completed the contract shortly after and made an application for the $10k Qld Building Boost Grant based on the October 2011 contract.
The Building Boost grant was available for the purchase of a new home already built or one that was to be built where the contract date was from August 2011 thru April 2012 and the buy price was up to $600k.
Ms Mitchell had in fact given notice of her intention to claim the grant in July 2012 and had received an acknowledgment from the Stamp Duties office.
But when she made the formal application in November 2013, it was rejected. The Commissioner of State Revenue viewed the second contract was entered outside of the eligibility period disentitling Ms Mitchell to the grant.
She appealed the Commissioner’s decision on the grounds “that the transaction was followed through to a completed transaction in the period required”.
She argued before the Queensland Civil and Administrative Tribunal (QCAT) that the first contract and second contract were “one and the same transaction”.
The first contract was rescinded only – she contended – because she had not sold her house before the unit settlement and her financier required her son to be noted on the title.
QCAT member James Allen ruled that “the effect of the deed of rescission was to terminate the first contract subject to the entry by the parties into the second contract which does not operate to vary the first”, but rather to rescind it and bring it to an end.
Thus Mitchell and her son purchased the unit by way of the October 2013 contract entered into outside of the eligibility period.
The tribunal affirmed the Commissioner’s decision.