Dalma Plastering Pty Ltd and Kenmont Investments Pty Ltd v Residents of Sapphire Gardens Residential Resort

[2013] QCAT 127

CITATION: Dalma Plastering Pty Ltd and Kenmont Investments Pty Ltd v Residents of Sapphire Gardens Residential Resort [2013] QCAT 127

PARTIES:	Dalma Plastering Pty Ltd and Kenmont Investments Pty Ltd t/a Sapphire Gardens Residential Resort (Applicant)
v
Residents of Sapphire Gardens Residential Resort, Represented and listed in Annexure 1 (Respondent)

APPLICATION NUMBER: OCL082-12

MATTER TYPE: Other civil dispute matters

DECISION OF: Bernadette Rogers, Member

DELIVERED ON: 27 March 2013

ORDERS MADE: The miscellaneous application lodged 18 February 2013 by the Applicant is dismissed.

CATCHWORDS:

Application for interim orders relating to rent increase pending determination of application

Manufactured Homes (Residential Parks) Act 2003 ss 69, 70, 71
Queensland Civil and Administrative Tribunal Act 2009 s 61

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. Before the Tribunal is an application, lodged on 14 August 2012, by the park owner to confirm proposed site rent increases under s 71 of the Manufactured Homes (Residential Parks) Act 2003 (MH(RP)A 2003) (The substantive application).

2. Further to the substantive application, on 18 February 2013 the park owner lodged an application for miscellaneous matters and a response to this application on behalf of the home owners was received on 22 February 2013.  This decision relates to this application of 18 February 2013.

3. The park owner’s application is in the following terms:

   “1. The Applicant seeks an Order from the Tribunal that permits the Applicant to defer administering Site Rent increases at Sapphire Gardens, which would otherwise have taken place during 2013 in accordance with individual Site Agreements and the Manufactured Homes (Residential) Parks Act 2003, until 90 days after this Application is concluded, decided, settled or otherwise resolved.

   2. The Applicant seeks an Order from the Tribunal that any Site Rent increases administered in accordance with paragraph 1. above be back-dated to a date that such increases would have otherwise applied if not for the timing delays associated with Application OCL 082-12”

4. The reason given for the application is:

   “The Applicant is unable to administer further Site Rent increases at Sapphire Gardens until such time as the Tribunal establishes a new Site Rent from which 2013 increases can be based. Application OCL082-11(sic) must be determined first.”

5. There are no further submissions by the park owner in relation to this application.

6. The home owners are resisting this application. In their response they say there is no reason the annual percentage increase due to CPI cannot take place in the usual manner, the imposition of back payments would cause hardship and backdating the increase could impact on the ability of those who qualify to claim rent assistance from Centrelink.

7. The substantive application to this Tribunal is under s 71 of the MH(RP)A 2003. The Site Rent increases to which the miscellaneous application applies are governed by s 69. This section refers to those site agreements that provide for an increase in the site rent payable and state how the amount of the increase is to be calculated. It requires the park owner to give notice to the home owner of the increase, the date on which it will start and the right of the home owner to apply to the Tribunal for an order about the site rent increase.

8. Relevantly s 69(4) provides

   “The increase day must not be earlier than 28 days after the notice is given”.

   The park owner is asking the Tribunal to waive s 69(4) to allow it to issue the required notice after a decision is made by the Tribunal and to backdate the s 69 increase to the day to which such increases would have otherwise applied if not for the timing delays associated with the substantive application.

9. I have not been able to identify, and have not been referred to a situation where the Tribunal has granted the relief sought.

10. It could be argued the Queensland Civil and Administrative Tribunal Act 2009 (QCATA 2009) s 61(b), which authorises the Tribunal to ”extend or shorten a time limit fixed by this Act, an enabling Act or the rules”, is sufficiently broad to grant the relief sought. I do not think so. I am of the view that because the substantive application is based on s 71 MH(RP)A 2003 the jurisdiction of the Tribunal in these proceedings is limited to those rent increases not covered by s 69 as stated in s 71(1)(b). I therefore do not have the power to make orders that relate to increases under s 69 when there is no application before the Tribunal relying on that section. At the very least the power under s 61 QCATA 2009, which modifies the statutory rights and obligations of the parties, should only be used if I am satisfied my failure to do so would frustrate the objectives of the enabling legislation. For reasons referred to below I believe that is not the situation in this instance.

11. If I am wrong on this point s 61(3) QCATA 2009 prevents me from making the order if to do so would cause prejudice or detriment, not able to be remedied by an appropriate order for costs or damages, to a party or potential party to a proceeding. The home owners have argued the back dating would result in a lump sum back payment of rent due which would “place an unfair and needless financial burden” on them and that it would also affect the rent assistance component of their Centrelink entitlement. In the absence of evidence to the contrary I accept that making the order sought would cause detriment not able to be remedied by a costs order.

12. It appears the park owners are of the view the next CPI increase should apply to the whole of the rent increase to be finally determined by the Tribunal and that is the reason for this application. The MH(RP)A 2003 has provided for this situation. The Tribunal member making the final decision in this application will be able to have regard to, among other factors, “the frequency, and amount, of past increases in the site rent payable under the agreement” s 70(3)(e) and must state the date from which the increased rent, if any, is first payable s 71(11). In these circumstances it is not appropriate for me to make a decision which is better dealt with after the hearing of evidence and balancing of all the relevant factors.

13. The application of the park owner is dismissed.