Gentry v Surtie Enterprises Pty Ltd t/a Greenbank Gardens (No 1)

[2010] QCAT 72

CITATION: Gentry & Ors v Surtie Enterprises Pty Ltd t/a Greenbank Gardens (No 1) [2010] QCAT 72

PARTIES:	Ms Janice Gentry Ms Carol Murchison Mr Dave Lock Mr Donald Palmer Mr & Mrs Jim & Kay Vick Mr John Baker Mr & Mrs K & E Fleming Mr & Mrs Laurie & Betty Jackson Mr & Mrs B & L O'Shea B O'Shea Ms Barbara Gilmore Jure Bandera Mr George Unsworth Ms Jane Clark Mr & Mrs Roy & Georgina Coalter Mr & Mrs Eddie & Pauline Young Ms Evelyn Davies Mr J Hillman Mr & Mrs JE & H Whiles Mr & Mrs R & H Van Dyk Mr & Mrs S & GD Elliot C Werba Mr Murray Gore Mr Barry Mason
v
Surtie Enterprises Pty Ltd t/a Greenbank Gardens

APPLICATION NUMBER:              MH021 - 09

MATTER TYPE:   Other civil disputes

HEARING DATE:   Decision on the Papers

DECISION OF:   Michelle Howard

DELIVERED ON:   19 March 2010

DELIVERED AT:   Brisbane

ORDERS MADE:  That Murray Gore and Barry Mason be included as parties to the proceeding

CATCHWORDS:  Inclusion as a party

APPEARANCES and REPRESENTATION (if any):

This matter was heard on the papers.

REASONS FOR DECISION

History of Application

1. The applicants are home owners under the Manufactured Homes (Residential Parks) Act 2003 (MHRP Act). They filed an application against the respondent park owner in June 2009 in the Commercial and Consumer Tribunal (CCT or the former tribunal). It seeks the reduction of site rental under sections 70 and 72 of the MHRP Act.

1. The application was filed on 22 June 2009 following the respondent’s  site rent increase notice dated 27 May 2009. On 25 June 2009, the respondent withdrew the notice due to a calculation error, and on that same day issued a second notice of site rent increase. The file reveals that following the issue of the second notice, the applicants’ representative wrote to the tribunal  in correspondence received on 1 July 2009 advising of the ‘re-issue’ of the site rent increase notices, and requesting that the application stand, despite the withdrawal of the first notice and issue of the second notice, as it remained relevant. A revised applicant list was attached to the correspondence. The revised applicant list included Murray Gore and Barry Mason, as signatories to the list. The correspondence asked that they be listed as applicants in the proceeding. The correspondence asserted that the additional applicants were included ‘since the twenty-eight (28) day period has now been extended due to the re-issue of the site rent increase notice’. In correspondence received by the tribunal on 17 July 2009, the respondents advised that it objected to applicants, including those who are the subject of this decision, being included as applicants in the proceedings.

1. In August 2009, a formal application was made to join the 2 additional applicants, Murray Gore and Barry Mason. In support of the application, notices were filed signed by both proposed additional applicants consenting to their inclusion, together with statements from them confirming that they seek to be included and in both cases, that they were away from home at the time of the original applicants filed their application. The notices consenting to their inclusion as parties, were signed by them on 3 and 4 August respectively and filed in the tribunal on 10 August.

The Law

1. Effective 1 December 2009, the CCT was abolished. Under the transitional provisions of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) and in particular section 271, the Queensland Civil and Administrative Tribunal (QCAT) must deal with the proceeding under the QCAT Act or an enabling Act, but when doing so has only the functions of the former tribunal under the former Act, and can only make a decision the former entity could have made under the former Act. For the transitional provisions, a ‘decision, of a former tribunal…includes an order made or direction given by the former tribunal’.[1] QCAT must make its decision according to the parameters which applied to the CCT.

   [1] QCAT Act s 244.

1. Under section 53 of the Commercial and Consumer Tribunal Act 2003 (CCT Act), the former tribunal was empowered to order the inclusion of a person as a party to a proceeding if it considered that the person ought to be bound by or have the benefit of the order of the tribunal; or the person’s interests are affected by the proceeding; or it is desirable for another reason. Relevantly, the tribunal could make an order for inclusion on its own initiative or on the application of a party.

1. Under section 52, the former tribunal was empowered, on its own initiative or on application of a party, to extend a time limit fixed by or under the CCT Act or another Act for the start of a proceeding.

1. Under section 70(2) of the MHRP Act, a home owner has 28 days to make an application to the tribunal seeking an order about a site rental increase.

Submissions of the Parties

1. The applicant essentially submits that because of the withdrawal of the first site rent increase notice, the 28 day time frame commenced to run from the date of the second notice, namely 25 June. Since by 30 June, the two proposed applicants had signed the revised applicants list which was provided to the CCT on 1 July 2009, the applicant submits that the additional applicants applied within time.

1. The respondent submits that the application filed on 22 June 2009 was ‘obsolete’ because of the withdrawal of the first notice, and that the applicants needed to make a new application based on the second notice. Further, they argue that Murray Gore and Barry Mason should not be included as they were outside the time limit for the first notice, and outside the time limit for the second notice. In particular, they signed notices consenting to inclusion on 3 and 4 August respectively.

Decision 

1. It appears that the formal application for inclusion was made following the respondents objection. When the respondents first became aware of the intention of Mr Gore and Mr Murray to be included as parties to the application, it was at latest 17 July 2009. This was several weeks out of time for the first notice of site rent increase and within time for them to apply in relation to the second notice. The respondents may have been aware as early as 1 July of the intention for Mr Gore and Mr Murray to be included as applicants. This was a matter of days after the time expired for bringing of an application under section 70 of the MHRP Act regarding the first notice. The application under section 72 of that Act could have been brought at any time.

1. There are some 31 other applicants to the proceeding. The proposed additional applicants could have made application individually on 30 June 2009 and within time on the second notice. There appears to be no reasonable basis to disadvantage them by refusing the application to include them as applicants which would effectively require them to make separate application/s. The respondent was aware of their intentions within time. It is likely to be expeditious for the parties, including the respondent, for these additional applicants to be represented in this one application rather than to individually pursue claims relating to the same subject matter.  I am satisfied that the proposed applicants ought to have the benefit of an order of the tribunal in this proceeding.

1. Accordingly, I order that Murray Gore and Barry Mason be included as parties to the proceeding.