Dalma Plastering Pty Ltd & Kenmont Investments Pty Ltd t/as Emerald Gardens Residential Resort v Guigan & Quigan

[2013] QCAT 754

CITATION: Dalma Plastering Pty Ltd & Kenmont Investments Pty Ltd t/as Emerald Gardens Residential Resort v Guigan & Quigan [2013] QCAT 754

PARTIES:	Dalma Plastering Pty Ltd & Kenmont Investments Pty Ltd t/as Emerald Gardens Residential Resort (Applicant)
v
Howard Guigan and Cherie Quigan (Respondents)

APPLICATION NUMBER: OCL062-13

MATTER TYPE: Other civil dispute matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Ms Bernadette Rogers, Member

DELIVERED ON: 20 December 2013

DELIVERED AT: Brisbane

ORDERS MADE: The application by Mr and Mrs Quigan to dismiss application OCL062-13 is dismissed.

CATCHWORDS:

APPLICATION TO DISMISS APPLICATION – MANUFACTURED HOMES INTERLOCUTORY APPLICATION – where park owner applied to Tribunal under s 71 of the Manufactured Homes (Residential Parks) Act 2003 to increase site rent – where applicant given leave to withdraw application – where applicant brought second application to increase site rent – where respondent applies for application to be dismissed

Manufactured Homes (Residential Parks) Act 2003 ss 38, 69, 71
Queensland Civil and Administrative Tribunal Act 2009 ss 46, 47

APPEARANCES:

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. Mr and Mrs Quigan are the respondents in Application OCL062-13 brought to the Tribunal by Dalma Plastering Pty Ltd & Kenmont Investments Pty Ltd t/as Emerald Gardens Residential Resort. They have asked for the application by Emerald Gardens to be dismissed and it is this application by Mr and Mrs Quigan I must now decide.

2. Emerald Gardens commenced application numbered OCL119-12 on 13 November 2012 against Mr and Mrs Quigan and another named person. By an Application for Miscellaneous Matters dated 19 July 2013 it applied for ‘Directions that serve to remove Mr Howard Quigan and Mrs Cherie Quigan as respondents in QCAT Application OCL119-12’. In the letter accompanying that application it said Application OCL119-12 was based on a flawed s 69 Notice and a flawed s 71 Notice, that a new notice had been given to Mr and Mrs Quigan and that it intended to make a fresh application to QCAT if Mr and Mrs Quigan did not consent to the proposed increase in the new s 71 Notice.

3. On 15 August 2013 Emerald Gardens was given leave to withdraw the proceedings as against Mr and Mrs Quigan.

4. On 26 August 2013 Emerald Gardens lodged a new application naming Mr and Mrs Quigan as respondents. That Application OCL062-13 sought the following orders

   1. An order terminating the Respondents’ site Agreement pursuant to Section 38(1)(a) of the Act.

   2. If the Tribunal does not make order number 1, then an order that requires the Respondents to pay their Site Rent in accordance with Clause 3.4 of their Deed of License, which comprises part of their Site Agreement dated 31 March 2004.

   In relation to Section 71(8) of the Act:

   3. An order confirming the Proposed Increase documented in the attached Notice of Proposed Increase in Site Rent that was made and given to the Respondents pursuant to Section 71 of the Act on 19 July 2013.

5. On 3 October 2013 Mr and Mrs Quigan filed an Application for miscellaneous matters asking the Tribunal to dismiss Application OCL062-13. They claimed s 46(2) of the QCAT Act required Emerald Gardens to obtain the leave of the Tribunal before filing this new application because it relates to the same facts or circumstances as the Application OCL119-12. They say ‘The applications are virtually identical. Some of the figures have changed although the applications purport to cover the same period of time’. However this application does not refer to the first order sought in OCL062-13 for termination of the site agreement.

6. On the same day Mr and Mrs Quigan filed a Response and/or counter-application. The Response seeks certain orders from the Tribunal that relate to its jurisdiction to deal with the s 71 issue, the bank account into which site rent should be paid, referral to an enforcement agency to consider certain documents that have been filed and in the alternative an order that the site rent increase under s 71 is refused.

7. The Response deals with the first order sought by Emerald Gardens, namely termination of the site agreement pursuant to s 38(1)(a). It denies there is a breach of clause 3.4 of the site agreement as stated in the Notice to remedy breach dated 12 July 2013 relied on by Emerald Gardens. It discusses in great detail the differences in various documents that have been relied on and says those differences are not “cosmetic and irrelevant” but are important differences.

8. On 29 October 2013 Emerald Gardens filed a response to the application of Mr and Mrs Quigan. It says the application is frivolous and should be dismissed under s 47(2) of the QCAT Act. The response goes on to detail the factual differences between the first application and the present application and claims they are substantial.

9. Having considered the material provided by both parties I have decided the application should be dismissed.

10. The application is based on s 46(2) of the QCAT Act. This section provides

    (2) If an applicant withdraws an application or referral, the applicant can not make a further application of referral, or request, require or otherwise seek a further referral, relating to the same facts or circumstances without leave of the tribunal.

11. It is clear from the submissions of both parties that the application filed 26 August 2013 was based on facts and circumstances which were not the same as the application filed on 13 November 2012. Emerald Gardens identified numerous changes between the first s 71 Notice dated 9 October 2012 and the second s 71 Notice dated 19 July 2013. In particular it says the methodology used to calculate the site rent increase has changed. In addition the dates of effect of the Notices are not the same. Mr and Mrs Quigan comment the applications are virtually identical, while admitting some of the figures have changed. The Notices supporting the s 71 applications are not the same.

12. By the time of the second application a Notice to Remedy Breach dated 12 July 2013 had been issued to Mr and Mrs Quigan and the second application included a request for an order to terminate the site agreement. This is a circumstance which was not present at the time of the initial application.

13. There is a substantial dispute about the evidence relied on by Emerald Gardens to ground the breach of the agreement. This dispute about the evidence was not present in the first application.

14. The words of the legislation are clear and provide that leave is only necessary when the facts and circumstances of a subsequent application are the same as a previous withdrawn application. Considering the circumstances outlined above it can be seen that is not the case here.

15. I have considered the submission of Emerald Gardens that this application should be dealt with under the provisions of s 47 of the QCAT Act. Mr and Mrs Quigan were of the view that the second Notice was virtually the same as the first Notice and on that basis they should not have to face the Tribunal again in relation to the same facts and circumstances. Although their view was not accepted, there is no evidence to establish their application was frivolous, vexatious or misconceived, lacking in substance or otherwise an abuse of process.

16. I order the application by Mr and Mrs Quigan be dismissed.