Fitzmaurice v GM & JM Holland trading as Cooloola Cabins and Caravan Park
[2013] QCAT 679
| CITATION: | Fitzmaurice & Ors v GM & JM Holland trading as Cooloola Cabins and Caravan Park [2013] QCAT 679 |
| PARTIES: | Barbara Fitzmaurice, Lorraine Learhinan, David Morris, Warwick Foggitt, Ross O’Donnell, Barbara Lee, Graham Lee & Clive Jensen (Applicants) |
| v | |
| GM & JM Holland trading as Cooloola Cabins and Caravan Park (Respondent) |
| APPLICATION NUMBER: | OCL042-13 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | 15 November 2013 |
| HEARD AT: | Maroochydore |
| DECISION OF: | Member Kanowski |
| DELIVERED ON: | 13 December 2013 |
| DELIVERED AT: | Brisbane |
| ORDER MADE: | 1. The application is dismissed. |
| CATCHWORDS: | Manufactured homes – whether residents entitled to refund of electricity service charge – where previous similar application resolved at compulsory conference Manufactured Homes (Residential Parks) Act 2003 (Qld) s 99A |
APPEARANCES:
| APPLICANTS: | Mrs Barbara Fitzmaurice appeared on behalf of herself and the other applicants (most of whom were present) |
| RESPONDENTS: | Mr GM Holland appeared on behalf of himself and Mrs JM Holland |
REASONS FOR DECISION
The applicants are some of the residents of the Cooloola Cabins and Caravan Park. The park is owned by the respondents, Mr and Mrs Holland. The residents live in manufactured homes, and so the Manufactured Homes (Residential Parks) Act 2003 (Qld) (the MH Act) regulates the conduct of the park.
Mr and Mrs Holland purchase electricity from AGL, and on-supply it to residents. The consumption in each site is metered.
For some years up until 10 April 2013, Mr and Mrs Holland used the Queensland Government’s Ready Reckoner for the Maximum Charges to be Applied in the On-supply of Electricity to Domestic Customers, in working out how much to charge residents. The charges imposed by Mr and Mrs Holland included a service fee as recommended in the Ready Reckoner. The service fee recommended in the Ready Reckoner was $2.02 per week in the 2012/2013 financial year.
From 10 April 2013 Mr and Mrs Holland have ceased adding the service fee, on the basis that it may contravene section 99A of the MH Act. That section says:
Separate charge by park owner not to be more than cost
of supply for use of utility(1) This section applies if—
(a) under a site agreement, the home owner is required to
pay the park owner for the use by the home owner of a
utility at the site; and
(b) the use is separately measured or metered.(2) The park owner must not charge the home owner an amount
for the use of a utility that is more than the amount charged by
the relevant supply authority for the quantity of the service
supplied to, or used at, the site.Maximum penalty—20 penalty units.
That section took effect on 1 March 2011.
I cannot be certain that section 99A applies in the present case. The site agreements are not in evidence before the tribunal, so I do not know if the site agreements themselves require the residents to pay Mr and Mrs Holland for the use of electricity. For present purposes, I will assume that they do, and that section 99A applies.
In their written application to the tribunal, the applicants sought orders that Mr and Mrs Holland prepare an account for each applicant for all electricity overcharges and meter reading charges accrued from 1 March 2011 to 10 April 2013. (The meter reading charges are the service fees, in the language of the Ready Reckoner). At the hearing, Mrs Fitzmaurice said that the invoices provided by Mr and Mrs Holland did not identify the service fees and did not enable residents to work out what unit price was being charged. She clarified, though, that the applicants abandoned their request for the preparation of accounts, as they thought that it would be an impossible task given the limitations of the computer system used by Mr and Mrs Holland. Instead, they simply seek a refund of the money they paid for the service fee.
Mr Holland says that the service fee had not in fact been charged on a weekly basis, even though that was permitted under the Ready Reckoner. Rather, the service fee was charged only when the meters were read, which often was at intervals of two to three weeks.
Mr Holland also suggested that the question of a refund may have been raised and resolved in a previous QCAT application, OCL004-13, which had been settled on 3 April 2013. Neither Mr Holland nor Mrs Fitzmaurice was sure about this.
Proceeding OCL004-13 involved an application by all of the current applicants, together with some other residents, against Mr and Mrs Holland.
I have obtained a copy of the application lodged in OCL004-13. It sought a number of orders relating to the electricity invoicing practice in the park, on the basis that the practice breached section 99A. Correspondence attached to the application asserted that a meter reading charge was not permitted under section 99A. One of the orders sought was an order directing Mr and Mrs Holland to ‘refund the electricity service fee to applicant home owners’. In respect of that proposed order, I infer that in substance the applicants sought a refund of the service charges imposed since 1 March 2011.
The matter was resolved at a compulsory conference on 3 April 2013. QCAT made orders by consent to the effect that the service fee would be removed from 10 April 2013; electricity would be charged on a consumption basis only; Mr and Mrs Holland would post a copy of their electricity supplier’s invoices on the public noticeboard; the applicants would withdraw their application; and each party would bear their own costs. There was no order requiring a refund of the service charge. I infer from this that the dispute was settled on the basis that no refund was required.
In light of this history, I need to consider what approach should be taken in respect of the present application. The applicants are again seeking a refund of the service charges imposed on and after 1 March 2011.
In deciding a site agreement dispute, QCAT may make any order it considers appropriate to resolve the dispute.[1] I consider the appropriate order in this case to be an order dismissing the application. The applicants have previously brought an application seeking a refund of the service charge, along with other orders. They agreed to settle that dispute on particular terms, which did not include a refund of the service charge. It is common for parties in compulsory conferences to engage in some give and take: giving up one aspect of their application in return for success in another aspect, for example. As the parties have previously reached an agreement in a dispute which included the question of whether the service fee should be refunded, it would not be appropriate to allow the applicants a second ‘bite at the cherry’.
[1] Manufactured Homes (Residential Parks) Act 2003 (Qld) s 140.
Accordingly, the appropriate order is to dismiss the application.
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