Gant v Emmetlow Pty Ltd - [2013] QCAT 62

CITATION:

Gant and Anor v Emmetlow Pty Ltd [2013] QCAT 62

PARTIES:	Thomas Gant Patrick Mitchell (Applicants)
v
Emmetlow Pty Ltd T/as Colonial Village (Respondent)

APPLICATION NUMBER:

OCL046-12

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Sandra G Deane, Member

DELIVERED ON:

6 February 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Application is dismissed.

CATCHWORDS:

Manufactured Homes – site agreement dispute – application to vary special term – whether special term is an attempt to contract out of or is inconsistent with the Act – whether it is appropriate to vary a site agreement – whether special terms are unfair

Manufactured Homes (Residential Parks) Act 2003, ss 4, 22, 23, 25, 71, 140

Paton v New Concepts Developments Pty Ltd [2010] QCAT 101

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

Mr Gant and Mr Mitchell are home owners in the Colonial Village, a mixed use park and manufactured home village, located at Beams Road, Taigum. Emmetlow Pty Ltd is the park owner.
There is evidence before the Tribunal that:
a)Mr Gant entered into a site agreement with the park owner which commenced on 13 August 2009; and
b)Mr Mitchell entered into a site agreement with the park owner which commenced on 20 June 2008 (the Site Agreements).
These proceedings were commenced on 16 May 2012.
Mr Gant and Mr Mitchell seek orders that:
a) Special Term ST1 (c), (d) and (e) and Schedule 1 items 6 and 7 be deleted from Annexure A to the Site Agreements (Capital Contributions Special Terms);
b) Money paid by them as Capital Contributions be refunded.
Mr Gant and Mr Mitchell contend the Tribunal should exercise the powers in s 22 of the Manufactured Homes (Residential Parks) Act 2003 (the Act) to vary the special terms of the Site Agreements by deleting these parts of the Site Agreements because they are unfair or are in breach of s 23 or 71 of the Act.
Mr Gant and Mr Mitchell submit that the Capital Contributions Special Terms are only contained in 14 of 57 site agreements at the park and that this is unfair because the 14 home owners (including Mr Gant and Mr Mitchell) do not receive any additional benefits to those made available to home owners who do not have obligations to pay Capital Contributions in their site agreements. They also appear to contend it is unfair because the site rents payable at the park are higher than site rents at other parks prior to taking the Capital Contributions into account.
They contend that the Capital Contributions are effectively an increase in site rent in breach of s 23 of the Act as it is circumventing the procedures required to increase site rent set out in s 69 or 71 of the Act.
The evidence before the Tribunal is that:
a)the Capital Contributions are analogous to a sinking fund levy in a body corporate;
b)all new site agreements entered into by the park owner for many years have included these terms;
c)the park owner’s intention is that all new site agreements will contain such terms so that over time it is intended that all site agreements will contain these terms.
The Tribunal has power to make an order it considers appropriate about the proposed variation[1] and an order it considers appropriate to resolve the site agreement dispute.[2]
[1] Section 22(4) of the Act.
[2] Section 140 of the Act.
An agreement is void to the extent it purports to exclude, change or restrict the application or operation of a provision of the Act about the terms of a site agreement.[3]
[3] Section 23(1) of the Act.
In relation to Mr Mitchell there is evidence before the Tribunal that the issue of whether the Capital Contributions Special Terms were valid was litigated between Mr Mitchell and the park owner in Magistrates Court proceedings and his rights in respect of that point were compromised. I accept the submission that as between Mr Mitchell and the park owner the issue of validity has been previously determined by way of consent order.
I find that he was not entitled to bring these proceedings on the basis that the Capital Contribution Special Terms were inconsistent with the Act[4] and therefore he is only able to rely upon the “unfair’ claim in these proceedings in seeking a variation.
[4]That is an issue which goes to validity and either was specifically raised or could have been specifically raised in the prior proceedings.
The main object of the Act is to regulate and promote fair trading practices in the operation of residential parks to protect home owners from unfair business practices and to enable home owners to make informed choices by being fully aware of their rights and responsibilities.[5]
[5] Section 4(1) of the Act.
Important objects of the Act are encouraging the continued growth and viability of the residential park industry in the State and providing a clear regulatory framework to ensure certainty for the residential park industry in planning for future expansion.[6]
[6] Section 4(3) of the Act.
The Act provides that the site agreement must state the site rent and other charges payable under the agreement[7] and when the site rent and other charges are payable and how they must be paid[8].
[7] Section 25(4)(i)(i) of the Act.
[8] Section 25(4)(i)(ii) of the Act.
The Act does not set out what ‘other charges’ may be agreed to be payable under the site agreement. There are currently no prohibited special terms prescribed by regulation.[9]
[9] Section 25B of the Act.
Parties to site agreements are free to enter into agreements reached between them so long as the agreement does not contravene the Act. The Act seeks to ensure that home owners are able to make informed choices by being fully aware of their rights and responsibilities by ensuring that the terms are set out in writing and seeks to ensure the long term viability of the industry by creating certainty for both park owners and home owners.
For these reasons I agree with Magistrate Rinaudo’s finding that the Capital Contribution Special Terms are enforceable and not contrary to the Act[10].
[10]Emmeltow Pty Ltd Trading as Colonial Village v June Saruski-Kiss (M188/07, Sandgate Registry) (12 February 2009).
The additional issue which arises in this proceeding, which was not relevantly before Magistrate Rinaudo, is whether the Tribunal should exercise its powers to vary the special terms.[11]
[11] Section 22(4) of the Act.
The Act provides no guidance as to the criteria to be used in exercising this power.
The Tribunal has previously accepted it would be appropriate for the Tribunal to vary a term if the term is inconsistent with the Act.[12]
[12] Paton v New Concepts Developments Pty Ltd [2010] QCAT 101.
As stated earlier in these reasons I am not persuaded that the Capital Contribution Special Terms are an attempt to contract out of the site rent increase provisions and therefore inconsistent with the Act. The Act permits additional charges to be agreed between the parties. An additional charge of this nature has not been expressly prohibited.
As no inconsistency is made out it is not appropriate to vary the special terms on that ground.
There is no evidence before the Tribunal that:
a)either Mr Gant or Mr Mitchell were coerced into signing the Site Agreements;
b)there were any misrepresentations as to amounts payable;
c)they were denied the opportunity to seek independent advice;
d)they were denied the opportunity to make proper enquiries prior to entering into the Site Agreement as to the terms and conditions of other similar manufactured home villages.
There is also no evidence of conduct of the park owner which suggests that maintaining these special terms in the Site Agreements would be unfair. They were disclosed to the home owners and they agreed to them. The park owner has given evidence that it has made business decisions in reliance upon the terms in the Site Agreements and if they were to be varied that might constitute an unfairness to the park owner.
In the absence of express prohibition in the Act the mere fact that site agreements entered into at an earlier time by others may be more favourable to those home owners than subsequently agreed to by Mr Gant and Mr Mitchell does not in itself warrant a finding of unfair practices or a finding that it is appropriate for the Tribunal to disturb the matters voluntarily agreed between the parties.
The evidence relating to site rent at other parks is not relevant to the issue to be determined. Mr Gant and Mr Mitchell were at liberty to enter into a site agreement with another park owner. They chose to enter into the Site Agreements.
Given the long term or potentially perpetual nature of site agreements it is foreseeable that during the life of the site agreement circumstances may change warranting a variation to its terms and it may be appropriate for the Tribunal to make such orders if agreement has not been able to be reached.
There is no evidence before the Tribunal as to any such change in circumstance.
I am not satisfied that it is appropriate for the Tribunal to vary the Site Agreements by deleting the Capital Contributions Special Terms.