Gateway Lifestyle Coombabah Homeowners v Hammond Village Operations Pty Ltd

[2023] QCAT 51

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Gateway Lifestyle Coombabah Homeowners & Anor v Hammond Village Operations Pty Ltd [2023] QCAT 51

PARTIES:

GATEWAY LIFESTYLE COOMBABAH HOMEOWNERS
WILLIAM PAUL HEWITSON

(applicants)

v

HAMMOND VILLAGE OPERATIONS PTY LTD

(respondent)

APPLICATION NO/S:

OCL041-18

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

3 February 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Deane

ORDERS:

The Application for miscellaneous matters filed 7 April 2020 is dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – procedure - where breach of settlement agreement reached at compulsory conference is claimed – whether jurisdiction to make order that respondent comply with the terms of the agreement in the proceeding settled and consequential orders – no jurisdiction where final order previously made

Manufactured Homes (Residential Parks) Act 2003 (Qld), s 8, s10, s11, s 12, s 13, s 14

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 84, s 85, s 86, s 87, s 88, s 89

Goldfield Projects Pty Ltd v Queensland Building and Construction Commission [2015] QCATA 101

Michelle Boyes & Anor v Graham Maddisson & Anor [2021] QCAT 423

APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act)

REASONS FOR DECISION

1. Mr Homans was the lead Applicant in this matter.[1]  Mr Homans and the other Applicants are homeowners[2] in a residential park[3] governed by the Manufactured Homes (Residential Parks) Act 2003 (Qld) (the Act). Homeowners own manufactured homes,[4] which are positioned on sites[5] in the residential park.  The park owner[6] owns the land, common areas and communal facilities built on the land.  Homeowners enter into individual site agreements with the park owner[7] in respect of the land on which their home is situated and their use of the common areas and communal facilities.

   [1]Direction 15 July 2019.

   [2]Manufactured Homes (Residential Parks) Act 2003 (Qld), s 8 (the Act).

   [3]Ibid, s 12.

   [4]Ibid, s 10.

   [5]Ibid, s 13.

   [6]Ibid, s 11.

   [7]Ibid, s 14.

2. On 6 September 2019 a compulsory conference was conducted in this matter and in OCL005-18 for which Mr Homans was also the lead Applicant.[8] The Respondent in these matters was the park owner.

   [8]Direction 26 August 2019.

3. On 7 April 2020 Mr Homans filed an Application for miscellaneous matters in this proceeding seeking:

   (a)An order for the respondent to comply with the legally binding agreement made on 6^th September 2019 at the QCAT compulsory conference held at the Coombabah village.  Member Steve Holzberger presided over the agreement. Mr Jamie Brown, Asset Manager for the respondent signed the agreement with myself Richard Homans, the lead applicant in the case, for the sewerage rate levy to cease from 1st October 2019 for the residents of the Hometown/Gateway Lifestyle/village at 22, Hansford Rd, Coombabah

   (b)An order that the respondent refund all monies charged against all members of Coombabah village park, 22, Hansford Rd, Coombabah since 1^st October 2019 contrary to the QCAT agreement.

4. Directions were issued for submissions to be filed by the parties and for the application to be determined on the papers not before 4.00pm on 19 June 2020.[9]  Submissions were received in June 2020 but for reasons which are not apparent the file was only referred to the Tribunal for determination on 20 January 2023. Such a delay is extremely regrettable.

   [9]Directions 24 April 2020.

5. Mr Homans does not refer to any particular power, which might allow the Tribunal to make the orders sought in the current circumstances. The park owner’s submissions do not address the power or lack of it either.  The submissions by both parties essentially deal with disputes as to the scope of the agreement reached including which homeowners had the benefit of the agreement, whether a further document was required before the terms were binding and whether the agreement was breached.

6. The Tribunal is a creature of statute and must find its powers within the QCAT Act or a relevant enabling act. The Act was the relevant enabling Act for these proceedings. I have not been able to identify any provision of the Act, which may grant power to make the orders sought by the Application for miscellaneous matters in this proceeding.

7. Division 4 of the QCAT Act[10] sets out a number of provisions relating to settlement in different circumstances e.g., settlement in compulsory conference,[11]  mediation[12] and other than in compulsory conference or mediation.[13] 

   [10]QCAT Act s 84 – s 89.

   [11]Ibid, s 84.

   [12]Ibid, s 85.

   [13]Ibid, s 86.

8. Section 84 relevantly provides that:

   (2) The person presiding at the compulsory conference may –

   (a) record the terms of the settlement in writing; and

   (b) make the orders necessary to give effect to the settlement.

   (3) This Act applies to an order made under subsection (2) as if –

   (a) the compulsory conference were a proceeding before the tribunal; and

   (b) the order were an order made by the tribunal constituted for the proceeding.

9. The use of the term ‘may’ in s 84(2) indicates that there is a discretion. There are similar discretions in each of s 85(2) and s 86(3).

10. There are limits on when an order giving effect to a settlement may be made.[14] The Tribunal must be satisfied that it could make a decision in the terms of the settlement or in terms consistent with the settlement.

    [14]Ibid, s 87.

11. In some circumstances contemplated by Division 4, no final order may be made at the time of the agreement being reached or soon thereafter.

12. In this matter, the learned Member exercised his discretion to record the terms in an agreement signed by or on behalf of the parties and make an order. The order of 6 September 2019 was an order made under s 84 giving effect to the settlement and has the same effect as if it was an order made by the Tribunal after deciding the proceeding.[15] The order in each matter was that ‘The application is dismissed.’

    [15]Ibid, s 88.

13. Once a final order is made the Tribunal, with limited exceptions, is regarded as ‘functus officio’ and no longer has power to make orders in the proceeding.

14. Section 89 applies if an offer to settle is accepted but the party who made the offer does not comply with its terms.[16] It relevantly provides that:

    (2) The tribunal, on the application of the party who accepted the offer (the relevant party), may –

    (a) make an order giving effect to the terms of the offer; or

    (b) if the party making the offer was the applicant –

    (i) dismiss the proceeding; or

    (ii) if the relevant party responded to the application for the proceeding before the offer was made, make an order awarding the relevant party any or all of the things asked for in the response; or

    (c) if the relevant party is the applicant, make an order awarding the relevant party any or all of the things asked for in the proceeding.

    [16]Ibid, s 89(1).

15. In each of s 84, s 85 and s 86 of the QCAT Act it is possible that a settlement has been reached and the terms recorded in writing but no final order made in the proceedings.

16. The Appeal Tribunal[17] has found that the preferable construction of s 89 is that the discretionary powers set out are to be exercised where no final order has previously been made in the proceeding. Each of s 89(2)(a), (b) and (c) empowers the Tribunal to make orders finalising the proceeding.

    [17]Goldfield Projects Pty Ltd v Queensland Building and Construction Commission [2015] QCATA 101, [56].

17. Relevantly s 89(2)(a) provides that an order giving effect to the settlement may be made. There is no clear power to set aside a final order made to give effect to a settlement and to substitute it with an order as provided for in s 89(2)(b) and (c).

18. The order of 6 September 2019 disposed of this proceeding. In the circumstances there is no jurisdiction to make another order under section 89 or otherwise.

19. I therefore make no findings as to the scope of the settlement agreement or whether it was breached. With limited exceptions a settlement agreement is a contract and is binding.[18]  Rights to orders sought in the proceeding are extinguished and are replaced by the rights set out in the settlement agreement. This concept in legal terms is referred to as ‘accord and satisfaction’. 

    [18]Michelle Boyes & Anor v Graham Maddisson & Anor [2021] QCAT 423.

20. Where final orders have been made and a person or persons contends that a settlement agreement is binding and has not been complied with then the appropriate course of action is to commence a new action in an appropriate court or tribunal to enforce the settlement agreement or to seek damages for its breach.