Burpengary Pines Pty Ltd v The Estate of the Late Colin Alan Jones

[2024] QCAT 297

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Burpengary Pines Pty Ltd v The Estate of the Late Colin Alan Jones [2024] QCAT 297

PARTIES:

BURPENGARY PINES PTY LTD

(applicant)

v

THE ESTATE OF THE LATE COLIN ALAN JONES

(respondent)

APPLICATION NO/S:

OCL032-23

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

19 July 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Deane

ORDERS:

1.     It is declared that the Estate of the late Colin Alan Jones has abandoned the manufactured home situated at site 17 Burpengary Pines on 19 July 2024.

2.     It is declared that the site agreement between Burpengary Pines Pty Ltd and the Estate of the late Colin Alan Jones is taken to be terminated with effect from 19 July 2024.

3.     Burpengary Pines Pty Ltd is authorised to sell the home situated at site 17 Burpengary Pines and any remaining personal effects of the late Colin Alan Jones in the home, on the site or Burpengary Pines, on the condition that:

(a)     Burpengary Pines Pty Ltd have the home and any remaining personal effects valued by an independent valuer and must not sell the home and personal effects for less than the valuation; and

(b) the proceeds of sale to be applied in accordance with section 54(2) of the Manufactured Homes (Residential Parks) Act (Qld) 2003.

4.     The Estate of the late Colin Alan Jones is to pay Burpengary Pines Pty Ltd the termination payment, being all sums payable to Burpengary Pines Pty Ltd under the Site Agreement up to 19 July 2024, in the amount of $14,634.13.

5.     The Registrar is to send a copy of this decision and reasons to Janelle Margaret Dale by email.

CATCHWORDS:

ENVIRONMENT AND PLANNING – PLANNING – DEVELOPMENT ASSESSMENT AND CONTROL – ASSESSMENT AND CONTROL OF PARTICULAR MATTERS – RESIDENTIAL – CARAVAN PARKS AND MOVEABLE DWELLINGS – whether manufactured home abandoned – whether park owner entitled to termination payment - whether park owner should be authorised to sell home and personal effects – whether park owner is entitled to after termination rent  

Human Rights Act (Qld) 2019, s 8, s 9, s 11, s 13, s 24, s 25, s 31, s 48

Manufactured Homes (Residential Parks) Act (Qld) 2003, s 4, s 8, s 11, s 26, s 27, s 32, s 38, s 52, s 53, s 54, s 55, s 149
Mobile Homes Act 1989 (Qld)
Queensland Civil and Administrative Tribunal Act2009 (Qld), s 3

Succession Act1981 (Qld), s 45

APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld) (‘QCAT Act’)

REASONS FOR DECISION

1. Burpengary Pines Pty Ltd is the park owner of Burpengary Pines under the Manufactured Homes (Residential Parks) Act (Qld) 2003 (‘the Act’).[1]  On 29 January 1998, Mr Colin Alan Jones entered into an agreement with the former owner of the park under the Mobile Homes Act 1989 (Qld). Such an agreement is taken to be a site agreement for the purposes of the Act.[2]  A successor in title of the park owner under a site agreement obtains the benefits and the obligations under the site agreement.[3] A copy of the site agreement is in evidence.[4] The park owner originally applied for an order that the site agreement be terminated for claimed breach by Mr Jones, including failing to pay site rent and failing to keep the home in the requisite condition and standard.[5]  Subsequently the Tribunal was advised that Mr Jones was deceased. 

   [1]Manufactured Homes (Residential Parks) Act (Qld) 2003, s 11 (‘the Act’).

   [2]Ibid, s 149.

   [3]Ibid, s 27.

   [4]Statement Ismail Limbada filed 1 May 2024, annexure 2.

   [5]Application filed 29 May 2023 (Original Application) pursuant to s 38 of the Act.

2. Pursuant to directions made 9 February 2024, the park owner now seeks an abandonment order.[6]

   [6]Application for miscellaneous matters seeking an abandonment order filed 1 May 2024 (Application).

3. The orders sought are:

   (a)a declaration that the Estate of Mr Jones abandoned the manufactured home and any remaining personal effects as and from the date of the Tribunal’s order;[7]

   (b)to authorise the park owner to sell the manufactured home and any remaining personal effects in the home, on the site and in Burpengary Pines with the proceeds of sale to be applied in accordance with section 54(2) of the Act;[8]

   (c)the Estate of Mr Jones to pay to the park owner all sums payable to the park owner under the site agreement up to the day the site agreement is taken to be terminated;[9]

   (d)the park owner is entitled to receive after-termination rent from the day the site agreement is taken to be terminated to the day the manufactured home and any remaining personal effects in the home are sold.[10]

   [7]n 1, s 52(3).

   [8]Ibid, s 52(6)(a) and s 53(5).

   [9]Ibid, s 52(6)(b).

   [10]Ibid, s 55(2).

4. The evidence is that:

   (a)Mr Jones moved into a nursing home in January 2023 and the park owner became aware of this not later than 19 February 2023.[11]

   (b)Mr Jones died on 5 June 2023.  A copy of a letter from the Metro North Hospital and Health Service dated 14 June 2023 has been filed in the Tribunal by his daughter, Janelle Margaret Dale, who claimed to be his executor and initially sought to challenge the Original Application.

   (c)Pursuant to a will made 19 July 1994 Mr Jones’ daughter, Ms Dale was appointed sole executor and trustee.[12]

   (d)On 29 August 2023 Ms Dale renounced her right and title to probate.[13]

   (e)On 11 December 2023 the Public Trustee of Queensland declined to apply or accept the estate of the late Mr Jones for administration.

   (f)No other person has sought probate or claimed an interest in Mr Jones’ manufactured home or remaining personal effects.

   [11]Statement Ismail Limbada filed 1 May 2024, annexure 4.

   [12]A copy of a will was filed 13 October 2023.

   [13]Filed 9 October 2023.

5. Under the Act, relevantly, a home owner is a person who owns a manufactured home that is positioned on a site in a residential park under a site agreement[14] and upon the death of such a person their personal representative or beneficiary of their estate.[15]

   [14]n 1, s 8(1)(a).

   [15]Ibid, s 8(1)(c).

6. A home owner’s right under a site agreement to position a manufactured home on a site continues until the agreement is terminated.[16]  A site agreement may only be terminated under Part 6 or Part 8 of the Act.[17]

   [16]Ibid, s 26.

   [17]Ibid, s 32.

7. The property of a deceased person devolves to his or her executor or if there is no executor the Public Trustee of Queensland.[18]  There is evidence before me that no person, including any of the beneficiaries named in the 1994 will, has applied for probate and the Public Trustee of Queensland is not acting in relation to Mr Jones’ estate and does not wish to be heard. While the property of a deceased person vests in the public trustee it is not required to act in the administration of the estate.[19]

   [18]Succession Act1981 (Qld), s 45(1).

   [19]Ibid, s 45(6).

Should an abandonment order be made?

1. I declare the Estate of the late Colin Alan Jones, the home owner, has abandoned the home as at 19 July 2024.  The site agreement is therefore terminated as at 19 July 2024.[20]

   [20]n 1, s 52(4)(b); Site Agreement, clause 9.2.

2. The park owner under a site agreement may apply for an abandonment order if it reasonably believes the homeowner has abandoned the manufactured home positioned on the site.[21] 

   [21]Ibid, s 52(1).

3. In deciding whether to make the abandonment order there are a number of matters to which the Tribunal may have regard.[22]  To the extent relevant I consider them. The evidence is, and I accept, that the site rent payable under the agreement is unpaid since 20 February 2023.[23]  A copy of the park owner’s site rent statement of account for the site is before me, it shows that as at 26 April 2024 site rent in the amount of $12,894.99 was owing.[24]  It also shows that site rent at the rate of $212.08 accrues weekly.  The park owner’s representative says the home has been unoccupied since Mr Jones moved out of the home and into a nursing home in about early January 2023, the home is neglected and in disrepair.[25] Copies of photographs of the home and site are before me.[26]  The photographs show that the home is in need of repair or maintenance and at least some of the owner’s personal effects have not been removed from under or near the home and the site is overgrown.[27]  The park owner contends that the site agreement has not yet been terminated.[28] It had applied to the Tribunal for a termination order in the Original Application.  The park owner’s representative says that the park owner checks Mr Jones’ mailbox on a regular basis since about June 2023, no mail (other than junk mail) has been received since about November 2023 and that to the park owner’s knowledge Mr Jones’ mail is not being collected by anyone else.[29]  The evidence is that Ms Dale removed some items in about January 2023[30] and that no one has been observed at the site or the home since about June 2023.[31] The evidence is that water to the home has been disconnected but electricity has not been disconnected because the switch to do so is located inside the home.  A copy of the park owner’s electricity statement of account for the site is before me, it shows that as at 26 April 2024 the account is in credit to the extent of $595.74 and that some quite minor usage has occurred in the period March 2023 to April 2024.[32]  The park owner is uncertain as to what, if any, personal effects remain inside the home as it has not accessed the interior of the home.

   [22]Ibid, s 52(5).

   [23]Ibid, s 52(5)(a).

   [24]Statement Ismail Limbada filed 1 May 2024, annexure 10.

   [25]n 1, s 52(5)(b).

   [26]Statement Ismail Limbada filed 1 May 2024, annexures 11, 12 and 13.

   [27]n 1, s 52(5)(g).

   [28]Ibid, s 52(5)(c).

   [29]Ibid, s 52(5)(d).

   [30]Ibid, s 52(5)(g).

   [31]Ibid, s 52(5)(e).

   [32]Statement Ismail Limbada filed 1 May 2024, annexure 15; n 1, s 52(5)(f).

4. No beneficiary under the 1994 will has sought to administer the estate, participate in these proceedings or make a claim against the home or any remaining personal effects.

5. I am satisfied that the manufactured home and any remaining personal effects are abandoned.

Other orders

1. In conjunction with the abandonment order the Tribunal may authorise the park owner to sell the home and may impose conditions[33] and may order the home owner to pay the termination payment, being any amount payable up to the date of termination.[34]

   [33]n 1 s 52(6)(a).

   [34]Ibid, s 52(6)(b).

Should a termination payment order be made?

1. I find that the Estate of Mr Jones is to pay the park owner the termination payment, being an amount of $14,634.13.

2. The park owner’s representative gave evidence that site fees to 26 April 2024 of $12,894.99 were owing.   The statement of account shows that site rent payable on 26 April was for the period ending 3 May 2024. I accept that evidence.  I also accept that site rent accrues at the weekly rate of $212.08 and minor electricity charges will likely have continued to accrue up to the termination date.

3. On my calculation a further 11 weeks site rent has accrued to 19 July 2024, being a further $2,332.88. 

4. According to the electricity statement of account charges totalling $3.78 accrued in the period 3 October 2023 to 2 April 2024, approximately 6 months.  The period from 3 April 2024 to 19 July 2024 is slightly more than half that period, doing the best I can on the evidence before me I find that electricity charges in an amount of $2.00 are likely to have accrued, which are to be deducted from the credit. 

5. I find that the Estate of Mr Jones is to pay the park owner the termination payment as at 19 July 2024 in the amount of $14,634.13, calculated as follows:

   (a)site rent as at 26 April 2024  $12,894.99

   (b)further site rent to 19 July 2024              $  2,332.88

   (c)less adjusted electricity credit                $   (593.74)

Should the Tribunal authorise the park owner to sell the home and personal effects?

1. I am satisfied that the park owner ought to be authorised to sell the home and any remaining personal effects of the Estate of Mr Jones in the home, on the site and in the park to recover amounts owing to it under the site agreement because no one has sought to claim them, amounts under the site agreement have accrued to the park owner and there appears no other way the park owner is able to recover any amounts owing. 

Should any conditions be imposed?

1. I find that the park owner must have the home and personal effects valued by an independent valuer and must not sell the home and any remaining personal effects for less than the valuation.

2. There is no evidence before me as to the value of the home or remaining personal effects so I am unable to specify the minimum sale price.

Is the park owner entitled to receive after termination rent?

1. I am not satisfied that the park owner is currently entitled to receive after termination rent.

2. Section 55(2) of the Act provides that the Tribunal may make an order conferring on the park owner an entitlement to receive an amount on account of after termination rent.  Section 55(3) of the Act provides that the park owner must demonstrate to the Tribunal that it has acted as soon as reasonably practicable to sell the home or personal effects and otherwise took all reasonable steps to mitigate the park owner’s loss of site rent that would have been payable under the agreement if it were still in force. 

3. I am not satisfied that such an order should be made at this time because a precondition of such an application for after termination rent is that an amount is paid to the public trustee from the sale of the home and personal effects.[35] The sale has not yet occurred and therefore no funds have currently been paid to the public trustee.  Further, in the current circumstances, there is no evidence of the matters the park owner is required to demonstrate under section 55(3) of the Act. An application for such an order is currently premature.  At an appropriate time, the park owner may apply to the Tribunal for such orders.

Human Rights Act (‘HR Act’)

[35]Ibid, s 55(1)(c).

1. The HR Act commenced on 1 January 2020.  All individuals in Queensland have human rights.[36]  A human right may only be subjected to reasonable limitations.[37]  The park owner did not make any submissions in relation to the HR Act.

   [36]Human Rights Act (Qld) 2019, s 11 (‘HR Act’).

   [37]Ibid, s 13.

2. In deciding this application:

   (a)I am not acting as a public entity because I am not acting in an administrative capacity.[38]

   (b)I have interpreted statutory provisions, to the extent possible that is consistent with their purpose, in a way that is compatible with human rights.[39]

   [38]Ibid, s 9(4)(b).

   [39]Ibid, s 48.

3. I accept that this proceeding and the determination of it potentially impacts Mr Jones’ personal representative’s rights to a fair hearing and I considered them.  Ms Dale renounced her rights and has not sought to be heard.  The Public Trustee of Queensland did not wish to be heard.  No other person, including any of the beneficiaries under the 1994 will, has sought to be heard. In coming to my decision, I have considered the documents filed both in respect of the Original Application and the Application.[40]

   [40]Ibid, s 31.

4. I accept that these proceedings and my decision potentially impacts other rights, in particular property rights[41] and the right to privacy and reputation.[42] I have considered Mr Jones’ personal representative’s human rights and am satisfied that the decision is compatible with their human rights as any limitations on those rights are reasonable and justifiable.[43] Any limitation of the human rights is consistent with the objects of the Act[44] and the objects of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).[45]

   [41]Ibid, s 24.

   [42]Ibid, s 25.

   [43]Ibid, s 8, s 13, s 31, s 48.

   [44]n 1, s 4.

   [45]QCAT Act, s 3.