Fogarty v Stockland LLC No.2 Pty Ltd ATF Stockland LLC Vision Trust

[2024] QCAT 226

QUEENSLAND CIVIL AND

ADMINISTRATIVE TRIBUNAL

CITATION:

Fogarty v Stockland LLC No.2 Pty Ltd ATF Stockland LLC Vision Trust [2024] QCAT 226

PARTIES:

KEVIN FOGARTY 

(applicant)

LEANNE FOGARTY 

(applicant)

v

STOCKLAND LLC NO.2 PTY LTD ATF STOCKLAND LLC VISION TRUST

(respondent)

APPLICATION NO/S:

OCL014-23

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

22 May 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Munasinghe

ORDERS:

1.     Stockland LLC No.2 Pty Ltd ATF Stockland LLC Vision Trust must permit Rhonda and Michael Huston to reside at Site 80, at Vision by Halcyon, for not more than 21 days, whilst Kevin Fogarty and Leanne Fogarty attend a holiday in 2024, using Qantas flight credits with the reference P3MQPL.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – MANUFACTURED HOMES – where park owner refused to consent to home owners’ request for pet sitters to reside at their home –Whether refusing consent was reasonable pursuant to site agreement

Manufactured Homes (Residential Parks) Act 2003 (Qld), s 14A, s 115, s 117

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

REASONS FOR DECISION

1. Kevin Fogarty and Leanne Fogarty (‘applicants’) apply to the Tribunal to review a decision made by Stockland LLC No.2 Pty Ltd (‘respondent’), to refuse consent for pet sitters to live at the applicants’ home, and care for their dogs, while they take a holiday.

Background

1. The applicants own a manufactured home, which is positioned within a ‘residential park’ named ‘Vision by Halcyon’ (‘Vision’), to which the Manufactured Homes (Residential Parks) Act 2003 (Qld) (‘MHRP Act’) applies. The respondent owns the residential park.

2. The applicants have two dogs named Billy and Shelby (‘dogs’). Both dogs are 11 years of age.

3. The applicants propose to take a holiday using expiring Qantas flight credits. The applicants received those credits after the COVID-19 pandemic (‘pandemic’) scuppered previous travel plans. On or about September 2022, the applicants asked the respondent to allow their cousins to pet sit the dogs at their home for 11 days (‘request’). They did so because a written site agreement between the parties contains a clause prohibiting a person who is not an authorised occupant from occupying the home whilst the applicants are not present, without the respondent’s consent.[1]

   [1]Site Agreement, Part 2, Chapter 2, Clause 2.26.

4. The agreement also contains a further clause prohibiting the applicants from letting or renting the home on a temporary basis (including housesitting, pet sitting and similar arrangements), without the respondent’s prior written consent.[2] The site agreement provided that the respondent may only withhold such consent or approval on reasonable grounds.[3]

   [2]Ibid, Part 2, Chapter 2, Clause 2.28.

   [3]Ibid, Part 2, Chapter 4, Clause 4.7(b)(1).

5. The respondent refused the applicants’ request (‘refusal’), citing precedent and unfairness to other residents as reasons for its refusal.

   The applicants’ contentions

6. Previously, Ms Fogarty’s parents cared for the dogs on occasions that the applicants were absent from their home. However, the applicants contend that arrangement is no longer possible because Ms Fogarty’s father’s health is deteriorating.

7. The applicants submit that it is not appropriate to place their dogs in kennel care, or with a stranger, because of their dogs’ ‘age, health and disposition’. Shelby requires nightly medication for a neck injury but is in reasonable health. Billy is temperamental because he is a rescue dog and was mistreated as a puppy. Billy has been diagnosed with hyperadrenocorticism (Cushing’s Disease). He receives morning and nightly medication to manage that condition. Billy also has a liver condition and deteriorating back knee joints, which have been operated on. Lately, Billy has become increasingly aggressive. He can go from ‘loveable and smiling’ to ‘aggressive and snappy’ in the ‘blink of an eye’, which makes administering medication to him challenging. On an occasion that Ms Fogarty attempted to give Billy medicine, he bit her on the hand.

8. The applicants acknowledge that the presence of non-owners at the park requires careful management. However, they contend that their cousins are mature (they are aged 68 and 71), are persons of good character, and would agree in writing to abide by the special terms of the site agreement.

9. The applicants submit that ‘precedent’ and ‘unfairness to other residents’ are not valid reasons for the respondent to withhold consent. They argue that their request is a ‘short term, once only, family arrangement resulting from a unique set of circumstances’.

10. The applicants rely on a letter by Dr Emmalene Nickson, who is Billy’s veterinarian. The letter, which is dated 30 January 2023, relevantly states:

    (a)Billy has been a patient of Happy Paws Veterinary Clinic since mid-2021;

    (b)Billy has been diagnosed with hyperadrenocorticism, which is a condition that requires life-long medications to manage symptoms;

    (c)Billy is a geriatric patient and becomes uncomfortable and stressed around strangers and in new environments; and

    (d)in Dr Nickson’s professional opinion, Billy would benefit from being cared for within his own home, in comparison to being housed at a kennel facility or external house sit environment. Either of those environments have the potential to exacerbate Billy’s health concerns.

11. The applicants unsuccessfully attempted to engage fellow Vision home owners to housesit the dogs, but they all declined because of Billy’s poor health.

Respondent’s contentions

1. The respondent submits that its refusal to consent to the applicants’ pet sitting request is justified, fair and reasonable in the circumstances. It contends that the following terms of the site agreement justify its refusal:[4]

   (a)Part 1, Section 15.1 – the applicants are not permitted to let their home;

   (b)Part 2, Chapter 2, Special Term 2.26 – the applicants shall not permit their home or the site to be occupied by any person(s) (who is not a home owner or authorised occupant) whilst the applicants are not present without the respondent’s prior consent;

   (c)Part 2, Chapter 2, Special Term 2.28 – the applicants must not let or rent the site or their home on a temporary basis (including Airbnb, housesitting, house swapping, pet sitting and similar arrangements) unless the respondent provides its prior written consent;

   (d)Part 2, Chapter 3, Special Term 3.12 – the applicants must comply with the Community Living Guidelines in force at Vision by Halcyon from time to time.

   (e)Part 3, Section 2.8 – the applicants must not rent the site to a tenant unless permitted to do so under the site agreement; and

   (f)Part 2, Chapter 2, Special Term 4.7 – the respondent may withhold its consent on reasonable grounds (except as specifically provided for elsewhere in the special terms).

   [4]Submissions of the Respondent, 31 August 2023, para 20.

2. The respondent avers that the applicants have not established that there is any emergency, or extraordinary or compassionate circumstances that justify approving their request. The respondent distinguishes the applicants’ ‘taking a holiday’, from legitimate compassionate or extraordinary grounds, such as ‘where a home owner is temporarily relocating to assist ill family members’.

3. The respondent argues that s 86 of the site agreement imposes on it an obligation to take reasonable steps to ensure a home owner has quiet enjoyment of the home owner’s site in the park and common areas. Further, the respondent argues that s 104 of the MHRP Act requires it to take reasonable steps to ensure a home owner or other resident, or the guest of a home owner or other resident, does not interfere with the reasonable peace, comfort or privacy of a home owner or other resident.

4. The respondent contends that the applicants have not established that they have no reasonable alternatives available to housesitting. It argues that there are several viable options for external home care environments and pet resorts that would adequately cater to the dogs’ health and disposition. The respondent complains that the applicants have not arranged any trials to introduce either of the dogs to a carefully vetted external house sit environment or a dog boarding facility.

5. The respondent observes that Billy and Shelby appear to be reasonably active dogs and exercise regularly despite their purported health concerns. The respondent points out that Vision has a very high proportion of pets compared to other Stockland Halcyon communities and to date no pet sitting arrangement has been approved simply because the home owner is seeking to go on a holiday.

6. The respondent claims that that most home owners within the Vision by Halcyon community have a strong position of not allowing pet sitters or strangers to reside in the community whilst home owners are away. To support that claim, the respondent relies on a statement by Jennifer Anne Cramp, who is currently the Chairperson of the Vision Home Owners Committee. In her statement Ms Cramp deposes that she:

   (a)has resided at Vision since December 2016;

   (b)attended a Vision Common Meeting hold on 11 November 2019, where a proposal raised to allow family members to use a site while a home owner is absent was defeated;

   (c)did not vote in favour of the proposal because, in her view, ‘it is not in the interests of home owners generally for such a proposal to be implemented’;

   (d)has recently contacted the majority of the Vision Home owners Committee members and ascertained that the Committee does not support the applicant’s request.

7. The respondent also relies on a statement by Anne Margaret Diamond, who was the Vison Home Owners Committee Chairperson from August 2018 to August 2020. She deposes that she:

   (a)has resided at Vision since 19 January 2017;

   (b)chaired the Vision Community Meeting held on 11 November 2019, where a proposal was raised to allow family members to use a site during a home owner’s absence;

   (c)observed that only 98 home owners attended the meeting (which amounted to 62% of all home owners at Vision);

   (d)observed only ten home owners voted in favour of the proposal, causing it to fail.

8. The respondent submits that because the proposed pet sitters are not a party to the Site Agreement, it cannot enforce or park rules against them personally.

9. Lastly, the respondent argues that, if it were to consent to the applicants’ request, it would ‘open the floodgates’ to other home owners to sublet their homes on a short-term letting basis.

Jurisdiction

1. A party to a residential park dispute may, subject to s 116 of the MHRP Act, apply to the tribunal for an order to resolve the dispute.[5] A residential park dispute, inter alia, includes a dispute between the park owner and the home owner under a site agreement about the parties’ rights or obligations under the site agreement or the MHRP Act.[6] Accordingly, I am satisfied the Tribunal has jurisdiction to hear the present dispute. The Tribunal has a broad discretion about the orders it can make where a party to a residential park dispute applies to the Tribunal. Essentially, it can make any order it considers appropriate to resolve the dispute.[7]

   [5]MHRP Act, s 115.

   [6]MHRP Act, s 14A(1)(c).

   [7]Ibid, s 117.

Consideration

1. The fundamental question to be decided in this dispute is whether reasonable grounds exist to withhold consent to the applicants’ request. The site agreement is silent about what constitutes a ‘reasonable ground’ but the community living guidelines provide guidance about circumstances when the respondent might grant consent. The guidelines state:

   Absences, House Sitting and Temporary Letting

   If you are going to be absent for an extended period, please let the Community Manager know in writing. You can make arrangements with neighbours to look after your home and garden (as you wish)

   Generally speaking, house sitting is not acceptable. However, in extraordinary circumstances, such as a home owner temporarily relocating to assist ill family members, house sitting may be considered on compassionate grounds.

   In instances where a house sitter has been approved, they must agree to abide by all the terms and conditions of the Site Agreement and to the general guidelines of the community. They must be over the age of 50.  In circumstances where Halcyon has approved house sitting, the house sitter will have full use of the facilities. Requests for such approvals must be in writing.

   Note that Halcyon is specifically designed as a residential community for home owners and therefore, temporary letting of your home is specifically excluded under the Site Agreement.

2. It is telling that the language of the community living guidelines, insofar as it provides an example of an extraordinary circumstance, is permissive rather than restrictive. Plainly, use of the words ‘such as’, in the guidelines, suggest that extraordinary circumstances are not limited to situations when a home owner relocates to assist ill family members.

3. In this case, the COVID-19 pandemic put the applicants in an invidious position. Either they must suffer the opportunity cost and financial loss which would ensue from forgoing travel credits, or alternatively, potentially compromise the wellbeing of their pets. The unpalatability of either of those choices is obvious. I take it on judicial notice that the pandemic was an unprecedented global catastrophe. Accordingly, it seems to me that the circumstances precipitating the applicants’ request are extraordinary and compassionate within the meaning of the community living guidelines.

4. I am satisfied that it is undesirable to place the dogs, particularly Billy, in an out of home placement or in kennel care. I accept the Dr Nickson’s evidence that such environments could exacerbate Billy’s health concerns or trigger aggression. Moreover, I infer that the applicants, through lived experience, know and understand their pet’s behaviours better than anyone else. I accept their personal observations that Billy’s health causes him to become aggressive, particularly when medication is administered to him. It follows that it would not be appropriate for a stranger to administer medication to Billy. Indeed, the applicants potentially expose themselves to civil liability if they engage others to care for Billy knowing that he could bite them.

5. Concerning the respondent’s remaining contentions:

   (a)the respondent’s submission that the dogs are active and exercise regularly, misses the point. The applicants’ primarily concerns are that out of home care will impact the dogs emotionally, and administering medication to Bill will prove to be impossible because of his aggression.

   (b)I am not persuaded that acquiescing to the applicants’ request ‘opens the floodgates’ to similar requests within the park. The wording of the site agreement makes plain that each request for consent must be considered in isolation and judged on its own merits. 

   (c)I do not consider that the applicants’ request fetters the respondent’s capacity to exercise its responsibility, under s 86 of the site agreement, to take reasonable steps to ensure a home owner has quiet enjoyment of the site.

   (d)I do not consider that the mere presence of the applicant’s cousins interferes with the reasonable peace, comfort or privacy of a home owner or other resident.

   (e)I am not persuaded that the outcome of the Vison Community Meeting held on 11 November 2019 stands as authority for the proposition that home owners within the Vision by Halcyon community have a strong position for not allowing pet sitters or strangers to reside in the community whilst home owners are away. Rather, it seems to me that the meeting was about allowing family members to use a site while a home owner is absent, which is a distinctly different proposition to allowing pet sitters in limited circumstances.

   (f)If the applicants’ cousins sign a written agreement to abide by the site agreement and community living guidelines, those agreements will be enforceable against them. 

6. For the reasons expressed above, I do not consider that there are ‘reasonable grounds’, within the meaning of Part 2, Chapter 2, Special Term 4.7 of the site agreement, to withhold consent to the applicants’ request. Accordingly, I propose to make the following order:

   1.Stockland LLC No.2 Pty Ltd ATF Stockland LLC Vision Trust must permit Rhonda and Michael Huston to reside at Site 80, at Vision by Halcyon, for not more than 21 days, whilst Kevin Fogarty and Leanne Fogarty attend a holiday in 2024, using Qantas flight credits with the reference P3MQPL.