Forsyth v Haraba Pty Ltd t/as Brisbane Gateway Resort
[2013] QCAT 375
•22 July 2013
| CITATION: | Forsyth & Ors v Haraba Pty Ltd t/as Brisbane Gateway Resort [2013] QCAT 375 |
| PARTIES: | Carolyn Forsyth & Ors (Applicants) |
| v | |
| Haraba Pty Ltd t/as Brisbane Gateway Resort (Respondents) |
| APPLICATION NUMBER: | OCL063-12 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peter Walker, Member |
| DELIVERED ON: | 22 July 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application be dismissed |
| CATCHWORDS: | MANUFACTURED HOMES - Where Notice of Rent increase had been issued pursuant to the provisions of section 69 of Manufactured Homes (Residential Parks) Act 2003 (QLD). Where validity of Notice challenged. Meaning of section 69(2)(b) – Market Review Statutory Interpretation – where objects of Act had changed. Manufactured Homes (Residential Parks) Act 2003 (QLD), ss 69, 4. Meridien AB Pty Ltd & Anor v Jackson & Ors [2013] QCA 121, |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Background
The Respondent, Haraba Pty Ltd, is the park operator of the Brisbane Gateway Resort.
On 4 June 2012 Haraba Pty Ltd notified all home owners at the park of an increase of their site rent. That rent was calculated by way of a market review, purportedly in accordance with the terms of their site agreements and was notified pursuant to sections 69 of the Manufactured Homes (Residential Parks) Act 2003 (QLD).
Relevantly, each notice included the following words:
This increase has been calculated in accordance with your site agreement which provides for a market review of site rent on 1 July each Leap Year. The market review is intended to bring your site rent into line with market influences that have occurred during the relevant period from 1 July 2008 (being the date of the last market review) to the current date.
The applicable increases varied from site to site but resulted in all home owners’ site rents being increased to $205.50 per week.
On 29 June 2012 the Applicants commenced proceedings seeking orders that the increase be set aside.
On 29 April 2013 the Applicants filed an Application for Miscellaneous matters dated 24 April 2013 which alleged that the Notice of Increase was not valid.
Pursuant to the Directions made in respect of that second matter the Decision as to the validity of the Notice is to be decided by the Tribunal on the Papers.
Materials
There were submissions filed by each party together with a submission in reply by the Applicant. Those submissions set out the material that each party was relying on. I have read and considered the whole of that material.
Matter for determination
The question is of course, were the section 69 notices valid. Section 69 itself is in the following terms:
69Notice of increase in site rent
(1) This section applies if a site agreement—
(a) provides for an increase in the site rent payable under the agreement; and
(b) states how the amount of the increase is to be calculated.
(2) If the park owner wishes to increase the site rent under this section, the park owner must give the home owner a notice stating the following—
(a) the amount of the increased site rent;
(b) how the increased site rent has been calculated;
(c) the day the increased site rent is first payable (the increase day).
(3) The park owner must also state in the notice that if the home owner considers the increase is excessive, the home owner may apply to the tribunal, within 28 days after receiving the notice, for an order reducing the amount of, or setting aside, the increase.
Maximum penalty—100 penalty units.
(4) The increase day must not be earlier than 28 days after the notice is given.
(5) The increased site rent is payable from the increase day.
Each of the matters in subsections (1) to (5) must, of course, be established for the notice to be valid. However in this case it would seem no issue is taken, in respect of the 4 June 2012 notice, with any part of that section except for whether section 69(2)(b) has been complied with. Accordingly that is the sole matter for determination in this application.
Submissions
In short the Applicant submits that the Notices were not compliant with the relevant provision in the Act. While the detail behind such submissions is of course quite extensive. A brief summary of it is the following:
a)Having regard to the Act as a whole and in particular the new Objects of the Act, Section (69)(2) should be construed in such a way as to compel park owners to provide some level of detail as to the way in which they have calculated the increase. This must go beyond that stated in the site agreement, so as to allow the home owner to have some understanding of how the market review was calculated.
b)Haraba, by way of contrast, submits that a Notice under Section 69 of the Act will satisfy the provisions of Section 69(2)(b) if it states that the increase has been calculated in accordance with the identified provisions in the site agreement that state how the increase is to be calculated.
Discussion
For the purposes of this decision it is necessary to consider the current Objects of the Act, the prior version of the Objects of the Act and of course the Provisions of Section 69 itself. Accordingly, this is primarily a matter involving statutory interpretation.
The general approach to the task of statutory interpretation is discussed by the Queensland Court of Appeal in Meridien AB Pty Ltd & Anor –v- Jackson & Ors [2013] QCA 121
General principles of statutory construction relevant for present purposes may be extracted, conveniently, from the joint judgment in Alcan (NT) Alumina Pty Ltd –v- Commissioner of Territory Revenue (Northern Territory);
“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of Legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy (Citations omitted)”[1]
[1] At[17].
The Court of Appeal went on to say further:
Determination of the purpose of a statute or of particular provisions in a statute maybe based upon an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose of a statute resides in its text and structure. Determination of a statutory purpose neither permits nor requires some search, for what those who promoted or passed the legislation may have had in mind when it was enacted. It is important in this respect, as in others, to recognise that to speak of legislative “intention” is to use a metaphor. Use of that metaphor must not mislead. The duty of a Court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. And as the plurality went on to say in project Blue Sky:
Ordinarily that meaning (legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.[2]
[2] At[18].
In order to apply an appropriate meaning to the provisions of the section 69 (2) (b) then requires a consideration of the literal words of the section but within the context of the Act as a whole[3]. Relevantly for these purposes that means that within the context of the whole of section 69 and within the context of the Objects of the Act.
[3] See Darnell & Hayes v SEQ Property Pty Ltd [2005]CCT MH018-04 & MH025-04 at [22].
It is submitted on behalf of Haraba that the meaning of the section, when considered in this context is plain and unambiguous. The Applicant contends that this is not the case and that this section is capable of at least 2 possible constructions namely that contended for by themselves and that contended for by Haraba. They say that the change in the wording of the Objects of the Act, as already referred to, is one of the factors that is relevant to why their approach should be preferred.
The current Objects are expressed as follows:
“4 Objects of Act
(1) The main object of this Act is to regulate, and promote fair trading practices in, the operation of residential parks—
(a) to protect home owners from unfair business practices; and
(b) to enable home owners, and prospective home owners, to make informed choices by being fully aware of their rights and responsibilities in their relationship with park owners.
(2)The main object is achieved by—
(a) declaring particular rights and obligations of the park owner, and home owners, for a residential park; and
(b) facilitating the disclosure of information about a residential park, and this Act, to a prospective home owner for a site; and
(c) regulating—
(i) the making, content, assignment and ending of a site agreement; and
(ii) the sale of an abandoned manufactured home positioned on a site in a residential park; and
(iii) the variation of site rent; and
(d) facilitating participation by home owners for a residential park in the affairs of the park; and
(e) providing ways of resolving a site agreement dispute.
(3)The following are also important objects of this Act—
(a) encouraging the continued growth and viability of the residential park industry in the State;
(b) providing a clear regulatory framework to ensure certainty for the residential park industry in planning for future expansion.
The former Objects of the Act, by way of contrast, stated as follows:
“4 Objects of Act
(1)The main object of this Act is to regulate, and promote fair trading practices in, the operation of residential parks by-
(a) declaring particular rights and obligations of the park owner, and home owners, for a residential park; and
(b) facilitating the disclosure of information about a residential park, and this Act, to a prospective home owner for a site; and
(c) regulating-
(i)The making, content, assignment and ending of a site agreement; and
(ii)The sale of an abandoned manufactured home positioned on a site in a residential park;
(iii)The variation of site rent; and
(d) facilitating participation by home owners for a residential park in the affairs of the park; and
(e) providing ways of resolving a site agreement dispute.
(2)The following are also important objects of this Act-
(a) encouraging the continued growth and viability of the residential park industry in the State;
(b) providing a clear regulatory framework to ensure certainty for the residential park industry in planning for future expansion.”
I must admit to having some difficulty seeing that the change in the wording between the two versions is of particular relevance to differences in the way that section 69 has been interpreted in the past and the way it should be interpreted today. Certainly the more recent version is clearer and more extensive but the general thrust of it appears to be essentially the same, namely to regulate and promote fair trading practices in the operation of residential parks.
Within the context of this particular decision it is of course extremely relevant that the Legislature, despite the review, did not make any changes to the provisions of section 69 itself. One would perhaps have thought that if past interpretation was not consistent with its intended purpose the best means of addressing that would have been to amend the provisions of the section itself rather than simply the Objects. To expect a change in interpretation of a section, in circumstances where Legislation has been reviewed, without amending the section itself would seem highly unlikely. To the extent it is relevant, then, the obvious conclusion to be drawn is that there was no perceived issue with the interpretation of that section.
I am therefore satisfied that past decisions on the interpretation of this section provide the best guide to the way it should be interpreted today.
The Decisions
There have been a number of decisions, particularly of the former Consumer and Commercial Tribunal that have dealt with the interpretation of the section.
The first of these to be considered is The Residents of Gateway Village Resort v Haraba Pty Ltd ATF the Haraba Trust t/as Gateway Village Resort [2005] CCT MH006-04. This, of course deals with the same Park as in the present case. In that case Member Gallagher made the following pertinent statement:
I agree with Mr Holland’s submission that the Act does not require disclosure in the notice of any mathematical formula or breakdown of figures. In my opinion, Section 69 must be read in its entirety. Section 69(1)(b) states that the section applies if a site agreement states “how the amount of the increase is to be calculated”. Section 69(2)(b) then provides that the notice must state “how the increased site rent has been calculated”. In my opinion the notice will satisfy the provision in section 69(2)(b) if it states that the increase has been calculated in accordance with the identified provisions in the site agreement as to how the increase is to be calculated. I do not think anything more is required.[4]
[4] At paragraph 38.
In that particular case the notice included the following statement:
The market review brings site fees into line with market influences (which include increases in the rental and property market in the area) which have occurred during the review period from 1 July 2000 (being the date of the last market review) to the current date.
Member Gallagher was satisfied that this alone was an adequate statement of how the increased rent had been calculated.
The second decision, that in my view, is instructive, is that in JARVIS Nigel Grant v Lewani Palms Resort Pty Ltd [2006] CCT M014-05, where Member Mrs G Spender also considered the meaning of Section 69 (2)(b). Importantly she made the following statement:
A market review involves a complex assessment of a range of factors. A market review rent is certainly not able to be established by the application of any mathematical formula. No calculation in a mathematical sense is involved. It is, in the end, a subjective assessment based on objective facts. When a market review occurs as provided for in a site agreement, all the park owner has to state in the Section 69 Notice, in order to comply with Sections 69 (2)(b) is, in my view, words to the effect that the increased site rent is based on a market review on the relevant provision of the site agreement must be identified. A market review is “how the increased site rent is to be calculated” in terms of Section 69(1)(b). I am satisfied that the Section 69 Notice complied with the requirement in Section 69 (2)(b) to state how the increased site rental had been calculated by stating in Part B that:
“the increase has been calculated to reflect a fair market rent as set out in Part 4 of your Agreement headed “EXPRESS TERMS OF THE AGREEMENT ‘OCCUPANCY 2’ “ and calculated, taking into account those items set out in Section 70 (3)A-J”[5]
She goes on to state:
It would, likewise, be prudent for a park owner to attach to a Section 69 Notice, documentation setting out in some detail the factors which have been taken into account in establishing the site rent following a market review, but there is nothing in Section 69 (2)(b) which in, my view, obliges the Park owner to do so.[6]
[5] At paragraph 23.
[6] At paragraph 24.
The matter was also considered by Member Gallagher, more briefly, in the decision of DARNELL, Keith and Joan v S.E.Q Properties Pty Ltd [2005] CCT M018-04. I note that the Applicants submit that on a true construction this case is in fact supportive of their stance.[7] I have some difficulty with this in that the quotation, and in particular the second part where emphasis was added seems to be nothing more than a regurgitation of part of the relevant notice rather than an expression of the Member’s views. It does not appear that the interpretation of section 69 and in particular 69(2)(b) was a major issue in this case at all and the Members comments really do little to enlighten one in that respect.
[7] See submissions in reply at paragraphs 25 and 26.
I also note the submission of the Applicants[8] with regard to the decision in The Residents of Edgewater Village v S J Tickle & Son Pty Ltd & Budfield Pty Ltd [2005] QCCTM 1. It seems noteworthy that two of the three members who heard that case were Member Gallagher and Members Mrs Spender, who both subsequently and more clearly expressed their views on the interpretation of section 69(2)(b) in the cases referred to above. I take the quotation referred to from paragraph 49 of that decision to be nothing more than a pragmatic statement of what would have been appropriate in that particular case. It certainly did not stand out to me as a definitive approach to the interpretation of the section. It is also perhaps instructive that there was finding that the notice was invalidated by reason of the failure to attach the sheet in question.
[8] See Applicants submissions in reply at paragraphs 32 and 33.
Discussion
The Applicants submit that the words of Section 69(2)(b) contain an ambiguity. In this respect they presumably refer to the use of the word ‘how’ and the manner in which it is to be interpreted.
An example of a definition of “ambiguity” can be found in the Free Online Dictionary.[9] There it is defined in the following terms: “Doubtfulness or uncertainty as regards interpretation.” The uncertainty must exist, in my view, in the words themselves rather than in the responses that may be given to the words. It seems to me that the argument being advanced is that because different answers may be given to the concept “how” as it used is section 69(2) (b) the term itself is ambiguous. I do not accept that this is correct.
[9] >
In the context of this matter, if one was to ask the question, ‘How do you plan on conducting the review?’ a clear and proper answer in my view would be to simply say, ‘I intend to conduct a market review’. It would not, of course, be the only answer, and it is probably not even the best, but it is a clear answer to the question.
While I agree with comments made by others to the effect that it would be desirable for information to be contained within a Section 69 Notice going beyond what is present in this case[10], I do not believe that the provisions of Section 69 (2)(b) in fact require them.
[10] See, for example the comments of Member Mrs Spender at paragraph 24 in Palms Resort Pty Ltd [2006] CCT M014-05.
If I was to accept the submission made by the Applicants that “a notice is valid for the purposes of section 69(2)(b) only if it provides information, beyond that stated in the site agreement, that allows the home owner to have an understanding of how the market review was calculated”[11] then in my view that would lead to as many difficulties as it resolves. In particular just what would enable a home owner to understand how the market review was calculated would undoubtedly become the subject of much litigation in its own right. Rather I agree with the sentiments expressed by the Member, Mrs Spender[12], that the inclusion of the word “market review” is sufficient to describe “how” the review is conducted.
[11] See submissions in reply at para 10.
[12] JARVIS Nigel Grant v Lewani Palms Resort Pty Ltd [2006] CCT M014-05 at para 23.
I acknowledge the submission[13] based on section 14A of the Acts Interpretation Act 1954 (Qld). However that provision only has relevance in circumstances where an ambiguity can be pointed to. In my view, for the reasons already stated I do see that any such ambiguity arises.
[13] See submission received 14 June 2013 at para 31.
I note that the Applicants have indicated that in each of the cases referred to the Notices contained more detail than what is in the present case. That may be true in a literal sense but really the additional words in each case only described in the most general of terms the process which can be involved in a market review. I really fail to see how they better informed the home owners in any significant way, in circumstances where market review really is an imprecise art. In my view, the Section clearly does not require at detailed analysis to form part of a Section 69 Notice.
Order
In the circumstances I am satisfied that the notice complied with the provisions of section 69(2)(b). The other aspects of section 69 not being in dispute, I dismiss the Application.
Costs
I am encouraged by the Respondent to permit the filing of submissions in respect of costs. This Application is only one part of the matters to be decided in this proceeding. Should the Member presiding in the substantive Application decide that further investigation of costs is warranted no doubt they can make appropriate orders, however, it is not my intention to make a separate order in respect of this Application.