G & S Management Services Pty Ltd t/a Bundaberg Caravan Park v Beutel
[2011] QCAT 95
•15 March 2011
CITATION: G & S Management Services Pty Ltd t/a Bundaberg Caravan Park v Beutel [2011] QCAT 95
PARTIES: G & S Management Services Pty Ltd trading as Bundaberg Caravan Park v Danielle Beutel
APPLICATION NUMBER: OCL162-10
MATTER TYPE: Other civil dispute matters
HEARING DATE: 11 February 2011
HEARD AT: Bundaberg
DECISION OF: Ms Michelle Howard
DELIVERED ON: 15 March 2011
DELIVERED AT: Brisbane
ORDERS MADE:
1. That the site agreement between G & S Management Services Pty Ltd and Danielle Beutel be terminated effective as of 14 March 2014.
CATCHWORDS : Manufactured homes – application for termination of site agreement – where home owner disputes that the residence is a manufactured home – where home owner is no longer residing in home – where home owner intends to repair and market the home
Manufactured Homes (Residential Parks) Act 2003, ss 10; 16, 19, 21, 38, 39
Haraba Pty Ltd v Castles [2007] QCA 206
W & T Enterprises (Qld) Pty Ltd v Bernau [2010] QCATA 71
Stephens v Haraba Pty Ltd ATF Haraba T/A Gateway Village [2007] QCCTMH 13
Haraba Pty Ltd ATF The Haraba Trust TA Gateway Village Resort v Dowse [2007] QCCTMH 2APPEARANCES and REPRESENTATION (if any):
APPLICANT: Ms Deborah Woods, for the park owner
RESPONDENT: Self REASONS FOR DECISION
G & S Management Services Pty Ltd trading as Bundaberg Caravan Park (the applicant) seeks the termination of a site agreement under the Manufactured Homes (Residential Parks) Act 2003 (the Act) for site 48 between G & S Management Services Pty Ltd and Ms Danielle Beutel (the respondent). It is not controversial that the site agreement comprises several documents, namely the document entitled the Site Agreement; a Terms and Conditions Annexure; and the Sunstay Park Rules. The agreement was signed in September 2009.
It is also uncontroversial that Lorraine Palmer owns the land comprising the residential park, and that it is leased by her to G & S Management Services Pty Ltd. The application was made by Deborah Woods, formerly Deborah Roode, the park manager. A director of G & S Management Services Pty Ltd authorised her in writing to act on behalf of the company ‘in all matters relating to the tenants of Site 48, Ms Beutel’.
The applicant alleges various breaches of the site agreement by the respondent, in essence by way of excessive noise; non-compliance with park requirements regarding the movement of animals within the park; assault of a resident; and damaging park property. Numerous notices to remedy breach were issued in respect of the various alleged breaches. The applicant seeks a termination order but is prepared for the order not to take effect immediately provided that, pending the termination order taking effect, the respondent may only attend the park in the company of a police officer. If the tribunal is unable to make such an order, then a termination order effective immediately is sought.
The respondent challenges the jurisdiction of the tribunal to hear the matter, alleging that the premises are not a manufactured home within the meaning of the Act. If the tribunal decides that it has jurisdiction, essentially she argues, while accepting that she has interfered with the quiet enjoyment of the residential park by park residents, but not the other alleged breaches, that she was provoked to do so by the park management and other residents. She seems also to argue that management has engaged in a course of conduct to drive her from the residential park. She ceased to reside at the park after an incident at the park on 15 November 2010 culminating in another park resident driving a motor vehicle into her premises, causing significant damage to it. At the time of the hearing, she said that the person alleged to have caused the damage had been convicted of charges related to the incident and was serving a term of imprisonment. Ms Beutel herself acknowledged that she was subject to bail conditions arising out of the events of that day which did not allow her to attend the residential park unless accompanied by a police officer.
The respondent does not wish to return to reside in the home. However, she wants to be able to go to the park from time to time to collect belongings, consult with persons including insurers, local authority representatives and builders. She intends to have her home repaired and in due course, sell the home, so that she may recoup the capital investment it represents. She told the tribunal that some $69,000 was paid for the home. She understands the damage caused by another resident on 15 November 2010 will cost some $68,000 to fix.
The respondent alleges that the Police are prepared to lift her bail conditions currently in place, as I understand what was said, if the parties seek orders under the Peace and Good Behaviour Act 1982. She seemed to have some misunderstanding that the tribunal could change the bail conditions imposed. She seeks the dismissal of the application, although she does not wish to return to live at the premises, so that she may sell her asset. She also indicated that she was prepared for order to be made that allowed her to go back with a police officer, but as I understand it, only if the applicant paid for the cost of an off duty police officer to attend with her on each occasion.
Relevant provisions of the Act
A home owner under the Act, includes a person who owns a manufactured home which is positioned on a site in a residential park under a site agreement.[1] A manufactured home is a structure other than a caravan or tent, that has the character of a dwelling house; is designed to be able to be moved from one location to another; and is not permanently attached to the land.[2]
[1] Manufactured Homes (Residential Parks) Act 2003, section 8(1)(a).
[2] Manufactured Homes (Residential Parks) Act 2003, section 10(1).
A park owner is a person who owns a residential park or a successor in title of a person who owns a residential park.[3] A residential park is an area of land which includes sites; common areas; and facilities for the enjoyment of persons residing in manufactured homes located on sites within the area.[4] A site is land available for rent under a site agreement.[5] A site agreement between a park owner and a home owner provides for rental by the home owner of particular land in the park; positioning of the manufactured home on the land; and for the home owner’s use of the common areas and communal facilities; and provides for other things as required or permitted by the Act.[6]
[3] Manufactured Homes (Residential Parks) Act 2003, section 11.
[4] Manufactured Homes (Residential Parks) Act 2003, section12.
[5] Manufactured Homes (Residential Parks) Act 2003, section 13.
[6] Manufactured Homes (Residential Parks) Act 2003, section 14.
Part 3 of the Act provides for some basic responsibilities of park owners and home owners. Section 16 sets out some of a home owner’s responsibilities as follows:
16 Home owner's responsibilities
A home owner under a site agreement has the following responsibilities--
(a) to use the site only as a place of residence;
(b) to use the residential park's common areas only for a purpose associated with the home owner's residential use of the site;
(c) not to use, or allow the home owner's tenant or guests to use, the site or residential park's common areas for an illegal purpose;
(d) not to interfere with, and to ensure as far as practicable the home owner's tenant or guests do not interfere with, the reasonable peace, comfort or privacy of the residential park's residents;
(e) to pay the site rent and other charges payable by the home owner under the agreement;
(f) not to intentionally or recklessly damage or destroy, or allow the home owner's tenant or guests to intentionally or recklessly damage or destroy, the residential park's communal facilities;
(g) to maintain the manufactured home positioned on the site in a reasonable state of cleanliness and repair, and fit to live in;
(h) otherwise, to comply with the agreement and the park rules for the residential park.
Note--
The responsibilities mentioned in this section are taken to be included as terms of the site agreement under section 19.Section 19 of the Act provides, among other things, that a home owner’s responsibilities under section 16 are taken to be included as terms of a site agreement.
10. Section 38 of the Act provides that on the application by the park owner under a site agreement, the tribunal may make an order terminating the agreement on any of a number of specified grounds as follows:
(1) …..(a) the home owner--
(i) has contravened a term of the agreement; and
(ii) has failed to remedy the contravention after being given by the park owner a notice, in the approved form, requiring the home owner to remedy the contravention within 28 days after the notice is given;
(b) the home owner has assaulted a person who was lawfully in the residential park;
(c) the home owner has wilfully destroyed property, other than the home owner's property, on the residential park or site;
(d) the home owner is using the site other than as a place of residence;
Example of the home owner using the site as a place of residence--
the home owner using the site as rental accommodation
(e) the home owner, or the home owner's tenant or guest--
(i) repeatedly interferes, or has repeatedly interfered, with the quiet enjoyment of the residential park by the park's residents; and
(ii) continues, or has continued, the behaviour mentioned in subparagraph (i) after the park owner gives the home owner a notice, in the approved form, requiring the home owner to stop the behaviour;
(f) the park owner wishes to use the residential park land, or a part of the park in which the site is located, for another purpose stated in the application (the stated purpose).(2) An application for a termination order on the ground mentioned in subsection (1)(f) must be accompanied by a document certified by the local government for the local government area in which the residential park is situated stating it is lawful for the park land, or a part of the park in which the site is located, to be used for the stated purpose.
(3) In this section--
assault includes threaten to assault, procure someone else to assault and attempt to assault.11. Section 38(1)(d) was amended after the filing of the application. Transitional provisions apply regarding the determination of proceedings regarding applications under that sub-section. However, this application is not made under that sub-section and so the transitional provisions are irrelevant.
12. If a termination order is made under section 39, the order must specify the day the termination is effective; and require the home owner to give the park owner vacant possession of the site on or before the termination day. Once again section 39 was amended after the filing of this application but the amendments and associated transitional provisions relate to termination orders made on grounds mentioned in section 38(1)(f), which is not the case in this proceeding.
13. The Supreme Court of Queensland has held that even if a ground of termination has been strictly made out, the making of a termination order is discretionary.[7] In some circumstances, a termination order has been made, but specified not to take effect for a period of time of some years.[8] In some circumstances, the former Commercial and Consumer Tribunal has exercised its discretion to refuse to make a termination order, even though a ground for termination has been established.[9]
[7]Haraba Pty Ltd v Castles [2007] QCA 206; recently followed in W & T Enterprises (Qld) Pty Ltd v Bernau [2010] QCATA 71.
[8]Stephens v Haraba Pty Ltd ATF Haraba T/A Gateway Village [2007] QCCTMH 13 where the orders specified a termination date two years after the last date the resident had resided in her home.
[9]Gateway Village Resort v Dowse [2007] QCCTMH 2.
Preliminary Issues regarding the evidence
14. At the commencement of the hearing, the parties were asked to identify the material filed which they wished to rely upon. Ms Woods indicated that despite the directions of the tribunal requiring that documents be served on the other party, she had not received the statements relied upon by Ms Beutel. Ms Beutel stated that she did not have the applicant’s documents although they had been served on her twice according to the applicant. The first copy apparently remains at site 48. The loss of the second copy was attributed to the recent flood. In the circumstances, the parties were provided by the tribunal with the documents relied upon by the other and given time to read them.
15. Ms Beutel sought to call various witnesses for whom statements were not provided, namely Chris Johnson, Zoe Strachan and ‘Tanji’ surname unknown. She indicated that Ms Strachan had provided a statement in the ‘previous court case’ and that it had been provided to the tribunal, but the tribunal did not have it. Ms Strachan and Mr Johnson gave oral evidence at the hearing.
16. Early in the hearing, the respondent also indicated that she would rely upon a statement of Ms Chantal Young but that Chantal Young would need to be notified of the hearing and ordered to attend. She also said that Ms Young needed to be ‘notified’ of the hearing by mobile call, although she was not answering because she was ‘scared’. The tribunal considered that Ms Beutel had not made arrangements for Ms Young to be available to give evidence at the hearing.
17. After the luncheon adjournment, Ms Beutel said that she had arranged for Robert Woods, the estranged husband of Ms Woods, to give evidence. Ms Woods was opposed to this alleging that she has a DVO, which the tribunal understands is a domestic violence order against him, and because he had a restraint of trade clause in his employment contract with G & S Management Services Pty Ltd. The tribunal did not consider any restraint of trade clause to be relevant and was prepared to hear from Mr Woods if he was prepared to make himself available, given his role as a park manager during the period when many of the alleged breaches occurred. However, the tribunal endeavoured on two occasions to contact him on the number provided but the calls were unanswered.
18. Ms Beutel also wished to call the person ‘Tanji’ who she indicated was an ex-employee of the applicant. Ms Woods objected to this. Ms Woods indicated that if Tanji was called, she would want to call other witnesses also. The tribunal declined to hear from Tanji. The tribunal considers that it had sufficient evidence to decide the matter without hearing from her.
The respondent
19. The respondent gave evidence that she has a mental illness, in particular she says that she has an anxiety or stress disorder and has panic attacks. She also says that she has a previous diagnosis of bipolar disorder, which had been in remission, although she said it had returned. There was no medical evidence before the tribunal about her alleged mental illness, although her statement[10] says that she will provide medical evidence for the hearing. Her statement suggests that because of her condition, she talks ‘too loudly’ and becomes ‘easily agitated and argumentative’.
20. Ms Beutel had several episodes during the course of the hearing, when she seemed unable to catch her breath or to speak for some seconds. She attributed these episodes to anxiety. For a significant part of the hearing, and escalating in intensity as the day progressed, Ms Beutel spoke extremely loudly; interjecting frequently and yelling forcefully over other participants in the hearing when they spoke. She would not or could not take direction to desist from her disruptive behaviour so that the hearing could proceed in a more orderly manner. On numerous occasions, she attributed her behaviour to her mental illness.
21. I accept that Ms Beutel has a mental illness. However, she appeared to understand the application, the purpose of the hearing and the evidence being given and its implications. I considered that the hearing could proceed.
Are the premises a manufactured home?
[10] Exhibit 9 dated 13 December 2010.
22. The respondent says that the building is permanently attached to the land. She states that it is constructed on a concrete slab and cannot be moved without being demolished. She provided a copy of correspondence from the Bundaberg Regional Council to L Palmer dated 7 December 2010, which was copied to her. The correspondence advises Ms Palmer that the structure on site 48 has been inspected after it was impacted by a motor vehicle and it was considered unsafe to occupy. It required that she take specified action related to the repair of the structure. It also advised that according to Council records, it appears that a development approval was not obtained for construction of the structure and required certain action be taken in that regard.
23. Ms Beutel considers that the structure was intended to be permanent as it was originally constructed for a site manager to reside in and therefore was not intended to be moved. She told the tribunal that an unnamed structural engineer engaged by RACQ, whom she said was unable to be contacted because of the recent floods and the recent cyclone, had said it was not a manufactured home but that he would have to go back to the site to provide a certificate, and Ms Woods would not allow him to do so.
24. The applicant’s representative said that she was not an expert, but that she understood the premises to be a manufactured home, and they had been treated as a manufactured home by the parties until now. She provided a copy of a Form 7 Notice of proposed sale and assignment of a manufactured home for site 48 signed by the previous owner, Norman Owens on 28 August 2009.
25. Neither party gave evidence about how the structure is affixed to the slab, both indicating that they did not know.
26. The respondent submits that the premises at site 48 are not a manufactured home. In written submissions to the tribunal about this issue, she refers to misrepresentations made to her by the previous owner, exacerbated by the park owner, that the building was a manufactured home. She submits that these misrepresentations caused her to assume that all necessary legislative approvals had been obtained by one or other of them.
27. If the structure is permanently attached to the land, and is not designed to be moved from one location to another then it is not a manufactured home within the meaning of the Act. There is no expert evidence before the tribunal about the manner of construction. Neither party knows how the structure is attached to the slab. Whether or not a development approval was obtained to build it does not indicate whether it falls within the definition. The applicant did not challenge the respondent’s assertion that the structure sits on a slab. However, that fact does not assist to determine whether or not it is designed to be able to be moved and whether or not it is permanently affixed to the land. It appears to be unchallenged also that it was built for a site manager to live in. However, that also does not assist to determine the manner of attachment to the land and whether it was a structure designed to be moved.
28. The respondent’s submission that the premises are not a manufactured home because it is on a slab is not supported by evidence about the manner of affixation to the slab. The premises have been treated by both parties until now as a manufactured home. It was treated by a previous owner as a manufactured home. On the balance of probabilities, I accept that the premises are a manufactured home under the Act.
Are there grounds for a termination order? If so, should the discretion to make a termination order be exercised?
The applicant’s evidence about the alleged breaches
29. Ms Woods gave evidence that she and her husband Robert Woods commenced in the role of park manager in February 2010. She said that there were, on a daily basis, altercations between the respondent and various other residents of the park. She said that notices to remedy breach in Form 6 under the Act were issued to the respondent on a variety of occasions after she commenced at the park. She provided copies of notices[11] issued during this period. They are as follows:
[11] Exhibit 2.
· A notice dated 7 April 2010 refers to a breach of Part 2 Section 4.1.1 (d) not to interfere with the reasonable peace, comfort or privacy of other park residents nor allow guests or tenants to do so on 2 April 2010. The provisions of the site agreement in Part 2 which are referred to are in similar terms to section 16 of the Act, and 4.1.1 (d), is similar to section 16(d).
It also refers to failure to comply with the site agreement and park rules regarding no undue noise in the park at any time; and states that verbal abuse to management and staff will not be tolerated from residents or visitors; and violence or threats will not be tolerated. A letter attached to the notice further refers to breaches relating to incidents on 2 April and 6 April 2010. It states that many hours of negotiations over an 8 week period have occurred to remedy numerous breaches of park rules for excessive noise, vulgar language and fighting between partners which she has failed to remedy.
The applicant provided some details of the alleged breaches, namely 4 separate incidents on 2 April and 3 incidents on 6 April all involving loud yelling and abusive language by the respondent towards park residents, visitors and when attempts were made to respond to the situations, management at the park.[12]
[12] Exhibit 1, ‘Disputes with Respondent/s’ numbered 1 to 7.
· A notice dated 7 May 2010 refers to a breach under ‘Part 3, section 16(d) not to interfere with the reasonable peace, comfort or privacy of other park residents. Park Rule 4. Visitors. Verbal abuse to staff or management will not be tolerated. Breach date 7/5/2010’.
The application refers to management representatives having heard loud indecent language from Ms Beutel,[13] and when Ms Beutel was approached by them in response to the situation, Ms Beutel spoke over the management representative.
[13] Exhibit 1, ‘Disputes with Respondent/s’ numbered 8.
· A notice dated 21 May 2010 refers to a breach of ‘Part 3, section 16(d) not to interfere with the reasonable peace, comfort or privacy of other park residents nor allow guests or tenants to do so. Breach date 18 May 2010’. The application sets out details. Three complaints were received about possible violence at site 48. When management representatives attended they heard loud, abusive and indecent language from the respondent and Zoe Strachan who refused requests to stop.[14]
· A notice dated 8 June 2010 specifies a breach as of ‘Clause 8: Pets. All dogs being walked in the park must be on a leash and all facieses (sic) collected by the walker of the dog immediately. All animals prohibited from the amenities, laundry and camp kitchen’.
· A notice dated 16 June 2010 details a breach of ‘Part 3, section 16(d) not to interfere with the reasonable peace, comfort or privacy of other park residents nor allow guests or tenants to do so. Breach date 15 June 2010. Further, see attached’. The attached correspondence includes ‘We have previously discussed many times the verbal and violent domestic disputes between yourself and Zoe Strachan, apparently to no avail as the disputes continue. I have not issued breaches for many of these past incidents because of your undertaking to rectify these problems. As advised at the time of your last incident, further incidents cannot be tolerated and action would be taken should it continue….’. The application sets out that the notice issued following complaints of a domestic dispute at site 48, and management had attended the site witnessing loud, abusive and indecent language from Ms Beutel. Requests of management for the behaviour to cease were refused.[15]
· Two notices dated 23 June 2010 were issued. One notice refers to a breach of ‘Clause 8: Pets. All dogs being walked in the park must be on a leash and all facieses(sic) collected by the walker of the dog immediately. All animals prohibited from the amenities, laundry and camp kitchen’. The second notice specifies a breach of ‘Part 3, section 16(d) not to interfere with the reasonable peace, comfort or privacy of other park residents nor allow guests or tenants to do so. Breach date 23/06/2010’. The application refers to this notice being issued after Ms Beutel approached management to make a complaint but then her voice escalated and indecent language was used, culminating in a ‘rage of indecent verbal abuse and threats’ when management representatives sought to defer further discussion.[16]
· A notice dated 9 July 2010 details a breach of ‘Part 3, section 16(d) not to interfere with the reasonable peace, comfort or privacy of other park residents. Park Rule 4. Verbal abuse to staff or management will not be tolerated. Breach date 9/7/10’.
· A notice dated 5 October 2010 specifies a breach of ‘Section 2, subsection 2.3. This site agreement may be terminated if the home owner assaults a person who is lawfully in the park’.
· A notice dated 19 October 2010 specifies breach details as ‘Clause 8: All dogs being walked in the park must be on a leash and all facieses (sic) collected by the walker of the dog immediately’.
· A notice dated 20 October 2010 specifies a breach as ‘Clause 8: All animals strictly prohibited from Amenities. (date of offence 18/10/10 – bottom Amenities)’.
· A notice dated 22 October 2010 details a breach of ‘causing damage to the Park and its property’ namely, pulling the toilet paper off the roll in a toilet cubicle, and then placing it into the toilet resulting in a blockage from excessive paper. Further, noting that tenants are responsible for their guests, Zoe Strachan, who is a guest of the respondent wrote in marker pen on the tiles in the amenities block several days before this incident involving the blockage. Breaches of park rule 11 and clause 12 are specified. Correspondence accompanying the notice refers to a witness hearing a person enter a cubicle, pulling the paper off the roll and putting it in the toilet and then visually identifying Ms Beutel.
Each of the notices to remedy breach requires the breach to be remedied by a stated date. A notice to remedy breach in Form 11 under the Residential Tenancies and Rooming Accommodation Act 2008 was also given, presumably in error, on 4 October 2010. The notices were signed by either Ms Woods or Robert Woods, her now estranged husband, who jointly managed the park with her until about October 2010.
[14] Exhibit 1, ‘Disputes with Respondent/s’ numbered 9.
[15] Exhibit 1, ‘Disputes with Respondent/s’ numbered 10.
[16] Exhibit 1, ‘Disputes with Respondent/s’ numbered 11.
30.The applicant’s evidence was that she personally had not been present during all of the incidents for which notices were given. Sometimes her husband had been present and sometimes residents reported incidents. She provided copies of diary notes[17] which she had made in relation to some of the incidents at which she said either she or her husband and on some occasions both had been present. Sometimes, although she was not physically present, she said she could hear the respondent screaming from wherever she was in the park. She said that the diary notes were made by her and recorded either what she saw and heard or what her now estranged husband saw or heard and told her had occurred. She said that the notes were made very soon after the occurrences.
[17] Exhibit 6.
31.The diary notes provided are dated 2 April 2010 to 23 June 2010. She stopped keeping diary notes after that date. Some of them coincide with notices being issued, some do not. Ms Woods stated that she was not able to be certain about whether she was present for some of them, but specifically recalled being present on 23 June 2010 when Ms Beutel approached her while she was in room 11, to discuss an incident involving her dog and a dog owned by another resident.
32.The diary note for 23 June 2010 records that Ms Beutel spoke at her for some 10-15 minutes, and would not allow Ms Woods to talk, saying that she had not taken her medication and she had to be heard, whilst speaking progressively louder and louder and using ‘the ‘f’ word’ ‘continuously’. After some 15 minutes, Ms Woods recalls saying that she did not have time to talk more at that time, upon which she records Ms Beutel as going ‘into a rage/outburst of extremely loud and vulgar abuse’. Ms Woods recorded telling her that she ‘could not tolerate this abuse and abusive language and outbursts’ and to stop or she would telephone the Police and have her removed from the park. She records that the abuse continued as Ms Beutel walked away. Ms Woods did telephone the Police. She records that throughout the afternoon, several people, presumably residents, commented to her that they considered the shouting and language by Ms Beutel was ‘horrific’.
33.She also provided a list of Police job numbers[18] relating to occasions when she and/or her husband had called the Police because of the behaviour of the respondent and Zoe Strachan, who she said was not a tenant at the park, but had shared Ms Beutel’s home. She states that some elderly residents were afraid to walk around the park ‘for fear of’ Ms Beutel’s ‘outbursts and abuse’.[19]
[18] Exhibit 15.
[19] Exhibit 15.
34.She said that the notice dated 5 October 2010 was issued following a complaint by a resident Kim Divall, who reported that Ms Beutel assaulted another tenant in the park, a Tracey Blackbacrow. Ms Divall was a witness in the proceeding and provided a written statement.[20] She said that she heard yelling on 3 October 2010, and looked outside to see the respondent and Ms Blackbacrow physically fighting. She said that ‘Tracey’ had her head down, was bent over and appeared to be trying to protect herself. Ms Beutel, she said, had hold of her and was punching her. She said that a man came out and separated them. She said that she knew who both the respondent and Ms Blackbacrow are, but was not a friend or associate of either of them.
[20] Exhibit 8.
35.Ms Divall was cross-examined by the respondent. The respondent asked Ms Divall to confirm that there were charges against her husband, relating to a complaint made to police by the respondent. Ms Divall responded that her husband was not subject to charges as alleged, and that she was not aware when she gave her statement, or since, of any such allegations against him. She denied that the Police had been to her residence to question her husband about the alleged complaint or charges. Further, she said that these assertions made by the respondent at the hearing were the first she had heard of these allegations.
36.Leanne Gail Paterson, a resident at the park, gave two written statements[21] which detail her records of some incidents which occurred at the park involving Ms Beutel, but they do not relate to the dates of the incidents giving rise to any of the notices to remedy breach. She speaks generally in her second statement about how Ms Beutel can be heard ‘everywhere in the park’ and how she ‘starts about anything’ then ‘threatens us all’ about ‘anything and everything’. She states that the respondent has ‘harassed at least half the van park’ and that trying to ignore the behaviour does not work. She said that the respondent had significantly disturbed her enjoyment of the park and that she had felt better since 15 November 2010 when Ms Beutel left the premises. She said that since then people were out and around, talking, and going to the pool and having bar-b-ques.
[21] Inadvertently referred to on the record as Exhibit 13: the statements are Exhibit 16.
37.Lorraine Palmer, the owner of the park, visits it twice each year. She gave evidence that she spent some ten to fourteen days at the park from 8 September 2010. During this period, she saw the respondent and her ‘insistent verbal abuse with fowl (sic) language to staff, residents and guests alike’.[22] She also states that Ms Beutel has no regard for park rules and ‘commanders(sic) the entire park with a problem dog, off the lead, and takes this dog, against park rules, into the Amenities, which is used for all, tourists, residents and guests’.[23] She said that on every occasion she tried to speak, Ms Beutel talked over her.
[22] Exhibit 7.
[23] Exhibit 7.
The respondent’s evidence about the alleged breaches, the credibility of the applicant’s witnesses and whether termination order should be made
38.For her part, the respondent admits[24] to ‘talking, screaming and using foul language loudly on any provocation’ and being unable ‘to remedy the Breach Notices issued for …. medical reasons’. She said that residents in the park, including Ms Woods, had subjected her to abuse, intimidation and acts of hostility. She says that a number of park residents ‘goaded’ her about her sexuality and her medical condition. She says that she was taunted on a daily basis about her sexuality and lifestyle, ‘whenever I left the door of my home to go to the Amenities Block for example’. She says she was spat at and subjected to ‘soto voice’ (sic) comments from other residents and was the topic of their daily gossip, and their ‘bragging’ about what they had done or would do to her. In particular, she states that the scared, elderly residents to whom Ms Woods refers, indulged in the taunting and gossiping to which she refers. She says that it was this behaviour which provoked her into behaving in a manner ‘that can be interpreted as anti-social’.
[24] Exhibit 9.
39.She says that when the Woods’ took over as park managers, she was in a ‘full blown “Park Feud”’, and that she and her ‘housemate had been bashed with an iron bar by a nearby ‘elderly ‘ resident’. She asserts that the Woods’ started issuing breach notices ‘for my swearing loudly’. She paid them little attention ‘because they were issued in support of this Mob who I didn’t care much for and were daily provoking me’. She claims the ‘Mob’ were considered model tenants by the managers. However, she says that Robert Woods came to understand her situation, and he tried to resolve the feud once he understood the background history.
40.However, she states that ‘neighbour harassment turned to physical violence’ against her on occasions after September 2010, after Robert Woods left the park. She alleges a resident hit her with his motor vehicle which then dragged her some 10 metres, and then stood over her strangling and punching her in the face and chest. Also, she asserts that while she was showering, on one morning a staff cleaner forced his way into the cubicle and put his hands on her breasts.[25]
[25] Exhibit 9, Attachment A.
41.She alleges an incident on 3 October 2010 when her home was surrounded by a ‘mob’ of residents celebrating a football final, and a chant was heard ‘I’m going to gut you like a pig’. She says that went to her door and saw a male neighbour ‘brandishing a knife’ while chanting the threat. She says that the neighbour then pulled down his pants and exposed his genitals to her. She says that he then masturbated. It seems the allegation is that this occurred close to her front door and that the male person was accompanied by the group of residents and Ms Woods.
42.She asserts that the ‘harassment especially by Management escalated’ when she proactively complained about park conditions, poor facilities, and illegal structures and renovations.[26] She considers that it was her approach to the local authority and State Member of Parliament about these matters which led management and residents to drive her out of the park, rather than remedying the problems complained of relating to drainage problems and the like. She says that instead management agitated residents into reporting breaches ‘often on things that did not happen’. She also states that Police were called on numerous occasions by ‘them and myself’. She says that ‘their calls were quickly responded to while’ hers were not.
[26] Exhibit 9, paragraph 8 (h).
43.On 15 November 2010 an incident occurred when a resident drove through the park and she says deliberately swerved into her home. The respondent states that he has been convicted of offences related to this incident and sentenced to an 18 month period of imprisonment.[27] On 15 November 2010, the respondent left the park and has since resided in a shed at the home of a family member, while seeking alternative accommodation. Ms Beutel does not disclose in her statement, and nor did it become clear at the hearing, what offences she has been charged with related to this incident: however, she says that the following day she was under a bail condition and could not go to the park unless accompanied by police.[28]
[27] Exhibit 9 [V].
[28] Exhibit 9, Attachment A [V].
44.The respondent sought to discredit Ms Paterson’s evidence alleging that in about ‘December,’ she and Zoe Strachan had declined Ms Paterson’s invitation for them to work for her in an establishment in Mackay. She said that most of Ms Paterson’s statement was written since they had declined the invitation.
45.She also alleges that Ms Woods has offered to make ‘the present problems ‘all go away’ if I make statements against Bob Woods in their divorce case. Others have also been approached’.[29] She alleges that the events she describes have provoked episodes ‘very negative to my state of mind and health’ and that Ms Woods has used her situation, namely her state of mental health, to encourage harassment by residents.[30]
[29] Exhibit 9 8 (h).
[30] Exhibit 9 8 (h).
46.She takes issue with the notice of 22 October 2010, stating that the allegations are made on the basis of the testimony of the park employee she is charging with sexual assault and that the amount claimed is not quantified. She denies that she or Zoe Strachan are responsible.[31]
[31] Exhibit 9 [iv].
47.In her statement, she refers to having ‘pending’ charges against two residents for serious assaults and sexual assault by a park employee.[32]At the hearing her evidence seemed to be that although she had spoken with Police about some alleged incidents, a police officer or officers had told her that she had a year to decide whether to proceed. Ms Beutel seemed to say that police had indicated the complaint she had made of sexual assault was laying dormant, and that she had a year to press charges and that she had not done so because of intimidation, as I understood her evidence, in relation to these proceedings.
[32] Exhibit 9, Item 8 (h) and Attachment A.
48.Ms Beutel wrote to park management in an undated letter[33] about the various notices to remedy breach served on her. Although it is undated, it is apparent from its content that it was written after the events of 15 November. In her correspondence, while she asserts that many problems occurred because of provocation by others, she accepts responsibility for her past actions and offered to remedy the breaches and made some undertakings and proposals. In particular, to remove herself permanently from the park from 15 November; not to reside in her home at site 48 at any future time; have her home repaired in the shortest possible time; sell her home at the earliest possible time for a fair offer; pay due site rent up until the sale of the home. She proposed that she be allowed to make arrangements to pack and remove her home contents; meet with insurance representatives, tradepersons, council officials and potential buyers during daylight hours at her site. She proposes that during such visits to the site she would not visit friends, converse with neighbours or use park facilities.
[33] Exhibit 9, Attachment Item 9 ½.
49.Ms Beutel’s correspondence to park management did not distinguish between breaches of the quiet enjoyment of the park and the other alleged breaches. However, the evidence at the hearing and submissions of the respondent are to the effect that she disputes the other breaches, and considers that the she was provoked into breaching the quiet enjoyment of others.
50.She gave evidence about her concern that she was effectively homeless. She believes the ultimate aim of park management in continuing with the application having regard to the undertakings and open proposal in her correspondence is to ‘extract maximum retribution for alleged past acts’ on her behalf, ‘silence’ her ‘from approaching Government Authorities, and ultimately resume/”Rip Off”’ her home at ‘Nil or Little Cost’. However, she accepts that the situation has reached a point where she cannot return to live at the residential park.[34] In response to Ms Woods’ evidence that Unit 29 was sold in October 2010, Ms Beutel said that unit 29 was sold to G & S Management Services Pty Ltd for $2500 to $5000, ‘with an illegal commission’.
[34] Exhibit 9, 9.
51.Yvonne Campbell is a former resident of the park. She said that she had seen the respondent being physically abused, run over and sworn at by other park residents.
52.Janice Lark, a resident at the park who was in the process of moving out, provided a statement in which she states among other things that Ms Woods has a group of people who support ‘her false accusations against specific tenants’ and has encouraged tenants not to relate to ‘Danni and Zoe’. She says that she has heard how vicious some residents have been towards them, and that they have suffered from mental abuse and physical attacks, referring to there being a personal vendetta against them to ‘rid’ them from the park. She speaks of Ms Beutel being provoked by residents who ‘try to upset her to make her upset, confused, belittled, angry’. She says that Ms Woods turns a blind eye to this behaviour against Ms Beutel.
53.She said that Tracy Blackbacrow had admitted she assaulted Ms Beutel. She said that she had gone to the police with Ms Beutel after this incident, presumably to make a complaint, and that the Police had told Ms Beutel to come back in four months. She conceded that her electricity account is unpaid, and rent is not up to date, indicating that this was so that the applicant could not withhold money after she vacates.
54.Chris Johnson is a resident at the park who resides with his mother Wendy Mayfield. He said that his mother had told him that Ms Woods had threatened to evict her if she supported the respondent. He spoke of rumours being spread about him by Ms Woods to other residents and that when he had heard of it, he had solicitors write to her to stop it occurring as well as confronting her about it. He has been at the park for 4 years and is aware that home owners have been unable to sell their manufactured homes in the park. He considers that this is because of the reputation of the park and because the park is not well maintained.
55.He said that he had seen Ms Woods drinking with witnesses for the applicant after a previous court case, and that when Ms Beutel’s house was ‘rammed’ that she had bought alcohol for residents. Also, he said a collection had been taken up towards the payment of rent for the resident who is in jail convicted of offences related to the damage caused to Ms Beutel’s home.
56.Zoe Strachan stated that other people had left the park because they could not resell; that other potential witnesses for Ms Beutel had been scared away, including Chantal Young; and that Ms Woods has ‘thrown out’ RACQ insurance personnel who attended with Ms Strachan at the damaged premises at site 48 after the incident on 15 November 2010. She said that they had wanted to board up the house, but that Ms Woods had sworn at them and told them to leave. She said that the RACQ building inspector had said it would be easy to fix the house, and that he would board up the front and that she could assist. However, she said that RACQ personnel had indicated that would not return unless Ms Woods was contained.
57.Wendy Mayfield provided an undated statement in which she says that she has resided in the park since 2008. She spoke about a deterioration in the atmosphere and maintenance of the park dating back to, it seems, the time of some previous park managers. She said that people who had been friends are now fighting, and that the park is now in an explosive state. She refers to people being unable to sell, despite dropping their prices to a level at which they are losing a significant amount of money.
Discussion
Evidence of the Supporting Witnesses
58.Much of the evidence given at the hearing in support of the applicant or the respondent, was challenged by the other party raising issues, unrelated to the issues regarding the breaches, or by their own admissions, which might affect the credibility and objectivity of the evidence given by the person.
59.For example, in relation to Ms Divall, the respondent says she has made a complaint to police against her husband. Ms Beutel seemed to suggest that Ms Divall was aware of this, and that it coloured the evidence she gave. However, Ms Divall, indicated that she was not aware of it. In this regard, Ms Beutel subsequently seemed to say that the complaint she had made to the Police was effectively on hold. However, as Ms Divall’s husband is employed by park management, she is not independent of park management.
60.Ms Lark is currently moving from the park, has not paid her electricity bill, is in arrears of rent, and appeared to be dissatisfied with management of the park for reasons of her own. Chris Johnson was advised that Ms Woods has spread malicious rumours about him and he had taken legal advice and action about this.
61.It also appears from the evidence that there are aligned groups of residents in the park, and that there was a well-entrenched dispute between them by the time Mr and Ms Woods became park manager. This long-standing conflict may also colour the perception of the various witnesses of what has occurred.
62.Lorraine Palmer, who infrequently goes to the park, may be an exception although she is the owner. However, her evidence did not go directly to any particular breach and so is not of assistance in relation to the breaches relied upon by the applicant in seeking the termination order.
63.Accordingly, I have placed little weight on the evidence of the supporting witnesses of either party, except where there is common ground between their evidence about an issue and the evidence of the other party about the same issue.
Are there grounds for a termination order to be made?
64.Ms Woods says that Ms Beutel has repeatedly sworn at and screamed at persons at the residential park on many occasions and that notices to remedy breach have been issued in respect of some of these incidents. She made some contemporaneous diary notes of incidents when she and/or her husband were present, although even when she was not present at the incident she could often hear Ms Beutel screaming from where she was in the park. She received complaints from other residents about the behaviour of Ms Beutel on occasions including 23 June 2010. She specifically recalled her involvement in the events which led to the issue of the breach notice dated 23 June 2010, relating to the interference with the reasonable peace and comfort of the park residents.
65.For her part, Ms Beutel herself admits that she talks, screams, and uses foul language readily. She does not dispute that the incidents alleged by the applicant to this effect occurred. However, she says she did these things as a result of her mental illness, and her consequent predisposition to provocation as a result of her illness. The Act does not provide that provocation and medical issues are relevant to whether breaches occurred. Either they did or they did not occur. She acknowledges breaches of the site agreement amounting to interfering with the reasonable peace comfort or privacy of other park residents and that she failed to remedy the breaches after receiving notices, despite her more recent offer to do so.
66.On the evidence, there is common ground that the respondent did repeatedly interfere with the reasonable peace comfort and privacy of park residents. On the balance of probabilities, I am satisfied that Ms Beutel has repeatedly interfered with the quiet enjoyment of the residential park by park residents as alleged in the notices to remedy breach, and continued the behaviour after notices in the approved form were given requiring her to remedy the behaviour on 7 April 2010; 7 and 21 May 2010; 16 and 23 June 2010; and 9 July 2010. I am satisfied that the requirements of section 38 (1)(e) have been met in that Ms Beutel has repeatedly interfered with the quiet enjoyment of the residential park by the park residents, and the behaviour has continued after the park owner gave her notice in the approved form requiring her to stop the behaviour.
67.Evidence was given by Ms Divall that she saw the respondent physically fighting with Tracey Blackbacrow on 4 October 2010. She saw Ms Blackbacrow with her head down and bent over and appeared to be trying to protect herself, while Ms Beutel had hold of her and was punching her. Janice Lark gave evidence that Ms Blackbacrow admitted to assaulting the respondent. As I understand it, Ms Beutel does not say that the incident referred to by Ms Divall did not occur. Her argument seems to be that Ms Blackbacrow assaulted her, presumably first. She submits that provocation and self-defence should be considered. I accept on the balance of probabilities that both Ms Blackbacrow and Ms Beutel assaulted one another during the incident.
68.A ground for termination is established if a home owner assaulted a person who is lawfully in the park. On the available evidence, it seems that both the respondent and Ms Blackbacraw were lawfully in the park. The termination application before me concerns Ms Beutel, not Ms Blackbacrow. I am satisfied that Ms Beutel assaulted Ms Blackbacrow who was lawfully in the park and that the requirements of section 38(1)(b) have been met. For this purpose, it is irrelevant that Ms Blackbacrow also assaulted Ms Beutel.
69.Notices to remedy breach were also issued in relation to breaches of a term of the site agreement regarding pets on 8 and 23 June 2010; and 19 and 20 October 2010. Little evidence was provided to the tribunal about these alleged breaches. Clause 8 of the Special Conditions Annexure is referred to as the basis of the breach. However, the documents provided to the tribunal as comprising the site agreement do not contain a clause 8 which relates to the keeping of pets. Those clauses which do refer to pets, including section 11 of the site agreement and clause 5 of the terms and conditions annexure do not refer to the leashing of dogs or their prohibition from areas of the residential park. Accordingly, I am not satisfied that the respondent has contravened a term of the site agreement concerning the breach notices issued regarding her dog.
70.Finally, a notice to remedy breach was issued in respect of causing a blockage in the toilet with excessive paper. Ms Woods issued the breach notice after a report from an unidentified person who did not see Ms Beutel put the toilet paper in the toilet, but apparently heard noises consistent with that occurring. Ms Beutel believes it was the park employee against whom she makes allegations of sexual assault. Ms Beutel denies the allegation. I am not satisfied on the available evidence that the applicant has established a contravention of a term of the agreement has occurred with respect to damage to park property.
71.In summary, I have accepted that there are two bases upon which a termination order may be made under section 38(1) (b) and (e) of the Act.
Should the discretion to make a termination order be exercised?
72.The more difficult question in this proceeding, is whether the discretion to make a termination order should be exercised, and if so, from what date the termination order should be effective.
73.Acknowledging that Ms Beutel was very stressed by and during the hearing and that this may have resulted in more challenging behaviour than she might usually exhibit, the tribunal had the opportunity to see how challenging Ms Beutel’s behaviour can be. I accept on the balance of probabilities that Ms Beutel’s mental illness led to her challenging behaviour.
74.However, she is, as a result of her mental illness, also a vulnerable person, who it appears could easily be moved to respond in a challenging and seemingly uncontrolled manner which would exacerbate, if not cause, conflict between herself and other residents, visitors and management and staff of the residential park. This vulnerability may indirectly underlie the criminal charges that she now faces. She is concerned that she is effectively homeless and I accept that this is a genuine and distressing concern for her.
75.Acknowledging the difficult situation in which she finds herself, she wishes to recoup the capital which went into the purchase of her manufactured home. This is a very reasonable desire. To do this, she needs to have it fixed. The applicant was sympathetic to this and indicated that it was prepared for the order not to have effect immediately provided that Ms Beutel could only come to the park with a police officer. If the tribunal could not make an order to this effect, a termination order effective immediately was sought. Ms Beutel, it seems, would be content to attend the park only in the company of a police officer, if the applicant pays for an off-duty police officer to accompany her.
76.Under section 38 of the Act , the tribunal may, if it is satisfied that a specified ground or grounds exist, may make an order terminating a site agreement. Under section 39 of the Act, the tribunal must state the date that a termination order it makes is effective. The Act does not give the tribunal power to make orders effectively imposing conditions on a home owner’s attendance at a residential park until a termination order takes effect.
77.It is apparent from the evidence of all of the witnesses that there is a significant and entrenched conflict between Ms Beutel and some other residents in the residential park. The tribunal heard various accounts of incidents in the park and some evidence about the cause of the conflict in the park. In essence, the applicant and its evidence suggest that Ms Beutel is responsible for it. Ms Beutel and the witnesses supporting her suggest essentially that other persons are responsible and that park management has taken sides against Ms Beutel, and her support network. Whoever initiated the conflict, it is clear that the relationship between some park residents and Ms Beutel has become untenable. She gave evidence about episodes of violence against her. It seems that the conflict between Ms Beutel and one resident led to him driving his vehicle into her home and being convicted of related criminal offences. Ms Beutel herself has been charged with an offence or offences arising out of the incident. Ms Beutel acknowledges that the situation has reached a point that she cannot return to live there. In all of the circumstances, I consider it appropriate to exercise the discretion to make an order terminating the site agreement.
78.However, I consider that the termination should not be effective until Ms Beutel has the opportunity to have her manufactured home fixed and the opportunity to market her home and recoup her capital. Mr Johnson has lived in the park for over 4 years and was not aware of units being sold. Ms Mayfield paints a grim picture of residents being unable to sell. Ms Woods said that a unit was sold last year, but Ms Beutel indicated that this was for a nominal amount to the applicant. Ms Woods did not contradict this. Ms Beutel deserves the opportunity to sell for market value. It seems that this is likely to take some considerable time, of some years. In all of the circumstances, the termination order will be effective three years from the date of this order.
79.At this stage, bail conditions prohibit Ms Beutel attending the park unless accompanied by a police officer. This tribunal order does not and can not affect that bail condition. I cannot impose conditions on Ms Beutel’s attendance at the residential park as the Act does not provide power to do so. It is apparent from the evidence, that it is highly desirable for Ms Beutel’s ongoing attendance at the park and contact with some park residents and staff to be regulated pending the termination order taking effect, for reasons of her own personal safety, as well as the safety of others. I understand that police officers have suggested that applications under the Peace and Good Behaviour Act 1982 be considered by the parties.
80.I order that the site agreement between the parties be terminated, effective as of 14 March 2014.
0
2
1