Bribie Pines Island Village Home Owners Committee v Palmpoint Enterprises Pty Ltd

[2013] QCAT 94

CITATION: Bribie Pines Island Village Home Owners Committee v Palmpoint Enterprises Pty Ltd [2013] QCAT 94

PARTIES:	Bribie Pines Island Village Home Owners Committee (Applicant)
v
Palmpoint Enterprises Pty Ltd (Respondent)

APPLICATION NUMBER: OCL029-12

MATTER TYPE: Other civil dispute matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Kate Buxton, Member

DELIVERED ON: 26 February 2013

DELIVERED AT: Brisbane

ORDERS MADE:

1.     By 29 March 2013, the park owner is ordered to:

(a)   Prepare an account for each homeowner of all electricity overcharges and meter reading charges accrued from March 2011 to November 2011.

(b)   Refund those charges to each homeowner. 

CATCHWORDS: Manufactured Homes – dispute between parties to site agreements – calculation of electricity service fee by park owner – section 99A Manufactured Homes (Residential Parks) Act 2003.

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. This dispute between the parties to various site agreements[1] involves the proper calculation of charges for electricity which is a “utility” under the Manufactured Homes (Residential Parks) Act 2003.[2]

   [1]        See homeowners application part D1; Manufactured Homes (Residential Parks) Act        2003 s140

   [2]        S14

2. Section 99A was introduced into the Act with effect from 1 March 2011. Section 99A now prescribes the way in which electricity can be charged. The explanatory notes accompanying the introduction to section 99A indicate that the purpose of the section is to prevent park owners from making a “profit” from the on supply of utilities in manufactured home parks, not to prevent them from recovering the legitimate costs of on supply.

3. The homeowners who have entered into various site agreements with the respondent park owner seek orders that, from 1 March 2011 to November 2011, the park owner repay to all park residents:

   (a)Electricity paid by them to the extent that it has been overcharged; and

   (b)Meter reading charges during that period.

4. The response filed by the park owner on 19 April 2012 asserts that the park owner was not in breach of section 99A although sets out some somewhat curious basis for that assertion:

   (a)The park owner was not aware of the introduction of section 99A in March 2011;

   (b)The park owner adhered to section 99A when it became aware, in November 2011, that the Act had been amended;

   (c)From March 2011 to November 2011 The park owner used the Queensland Government’s Ready Reckoner which had been the process to be used prior to the amendment to section 99A.

5. There does not appear to be any fundamental difference between the parties as to the correct method of calculation which section 99A now prescribes. The homeowners argue that the homes are individually metered and therefore the previous Ready Reckoner (tariff 11) no longer applies. This is precisely the process the park owners have adopted since the change to their internal processes in November of 2011. Further, since November 2011, the park owners have ceased to separately levy meter-reading charges. The only live question for the Tribunal is whether the park owners should refund electricity and meter reading fees charged other than in accordance with section 99A between March and November 2011. The homeowners have requested a refund, the park owners have declined. The only basis for the park owners declining seems to be that they didn’t realize they were obliged to calculate the electricity under section 99A until a date later than its initial introduction.

6. This somewhat baffling submission is not supported by any provision in the legislation nor by any relevant authority.  That is unsurprising as ignorance of a statutory obligation has never provided a legitimate reason for its non compliance. 

7. Following the park owner’s logic to its ultimate conclusion, if the homeowners had not pointed out the discrepancy in the method of charging the park owners could legitimately have been entitled to continue to offend its clear intent.  That scenario is not consistent with the aims of the Act or the general obligation of parties to comply with laws which apply to them: ignorance is no excuse.

8. This dispute can be simply resolved by ordering that the park owners apply the same method of calculation which they have adopted since November of 2011 to electricity charges and meter reading between March 2011 and November 2011. The park owners are ordered to prepare an account to each home owner for the difference between what was actually charged during this period and what ought to have been charged on a proper construction of section 99A. The park owner is further ordered to provide refunds to the individual home owners of the relevant electricity overcharges and meter reading charges. The accounts and refunds are to be completed by 29 March 2013.