Gentry v Surtie Enterprises Pty Ltd t/a Greenbank Gardens (No 2)
[2010] QCAT 73
•19 March 2010
| CITATION: | Gentry & Ors v Surtie Enterprises Pty Ltd t/a Greenbank Gardens (No 2) [2010] QCAT 73 |
| 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 |
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| Surtie Enterprises Pty Ltd t/a Greenbank Gardens |
APPLICATION NUMBER: MH021 - 09
MATTER TYPE: Other civil dispute matters
HEARING DATE: Decision on the Papers
DECISION OF: Michelle Howard
DELIVERED ON: 19 March 2010
DELIVERED AT: Brisbane
ORDERS MADE:
1. That the respondent produce to the Tribunal, within 21 days of this order, correspondence that relates to the claim that Main Roads Department will replace the fence, together with an index to the documentation and notations regarding any documents regarding which the respondent contends that there is reasonable excuse not to make them available to the applicants.
2. That the respondent produce to the Tribunal within 21 days of this order evidence of the yearly hire cost of the temporary fence from Australian Temporary Fencing from 2004 to 2009.
3. That the respondent is not required to produce the rates notices for Lot 2 and Lots 52/54 from the date of acquisition of Lots 52/54 to 2007.
CATCHWORDS: Appearance Notice requiring production of documents- objection to production- reasonable excuse
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers.
REASONS FOR DECISION
Background
The applicants are home owners under the Manufactured Homes (Residential Parks) Act 2003 (MHRP Act). They filed an application against the respondent park owner following a site rental increase in June 2009. It seeks the reduction of site rental under sections 70 and 72 of the MHRP Act.
On 19 November 2009, the applicant requested in correspondence that the Commercial and Consumer Tribunal (the CCT or the former tribunal) issue a notice to produce the following documents:
(a)Correspondence that relates to the respondent’s claim that the Main Roads Department will replace the fence;
(b)Evidence of the yearly hire cost of the temporary fence from Australian temporary Fencing from 2004 to 2009;
(c)The rates notices for Lot 2 and Lots 52/54 from the date of acquisition of Lots 52/54 to 2007.
A notice to produce and attendance notice issued on that day from the CCT under section 77 of the Commercial and Consumer Tribunal Act 2003 (the CCT Act). The documents have not been produced. In correspondence dated 26 November 2009, the respondent advised the CCT that it objected to the notice to produce.
On 11 February 2010, directions were made by the Queensland Civil and Administrative Tribunal (QCAT) that the applicant file and serve submissions in reply to the respondent’s objection to a notice to produce; and the respondent to file and serve its response to those submissions. Both parties filed submissions as directed. The applicants also filed further submissions in reply to the respondent’s response dated 14 March 2010.
The Law
Submissions of the Parties
The applicant did not make submissions about the applicable law.
The respondent submits in essence that under the transitional provisions, especially sections 243 and 271 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), the notice to produce must be assessed according to the parameters of the CCT Act. The respondent submits that there was not a general obligation under the CCT Act to disclose documents and disclosure was required only where the tribunal directed it. Under section 50 of the CCT Act, the CCT could require, if the tribunal considered it may be relevant to the proceeding, production of a document in the party’s possession or control. Under section 51, certain documents were not required to be produced including documents subject to privilege. Reliance was placed on several cases, including City Shacks Pty Ltd v QBSA[1] [2009] CCTB 62, in which observations were made regarding the CCTs jurisdiction to order production of documents.
[1] [2009] CCTB 62.
Applicable Law
Effective 1 December 2009, the CCT was abolished. Under the transitional provisions of the QCAT Act and in particular section 271, the 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’.[2]
[2] QCAT Act s 244.
By virtue of section 271(4) of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), anything done in relation to the proceeding continues and is taken to be done in relation to the proceeding under the QCAT Act. Under section 271(6)(b), a notice to produce given by the former entity to produce a document is taken to be a notice given under section 97(1)(b) of the QCAT Act to produce the document to QCAT. This provision ensures that following the abolition of the CCT, documents to be produced under notices issued by it are given to QCAT.
In my view, the transitional provisions require that QCAT must make its decision about the objections to production according to the parameters which applied to the CCT.
In this instance, the Notice to Produce was issued under section 77 of the CCT Act. Section 77 provided for the CCT to issue an attendance notice requiring a person to attend before it at the time and place specified to appear as a witness and/or produce documents or things stated in the notice. Section 78 provides, amongst other things, that a person must not fail ‘without reasonable excuse’ to produce a document required under an attendance notice. Under section 78(4), grounds for reasonable excuse include that the production of the document might tend to incriminate the person, but are not limited to those circumstances. When dealing with the respondent’s objections and making directions about which documents are to be produced or not produced, it is appropriate to have regard to those matters set out in sections 50 and 51 of the CCT Act.
The Submissions and Decision in relation to each Item
In some instances, the submissions of the parties addressed the substantive issue/s between the parties. Submissions going to those substantive issues are not referred to in these reasons for decision unless directly relevant to this decision about the notice to produce. Each item which is the subject of the notice to produce is dealt with separately.
Item 1: Correspondence that relates to claim that the Main Roads Department will replace the fence
Submissions
In essence the applicants argue that this documentation is relevant to the proceedings as a result of the respondent’s statement in its material filed in the tribunal to the effect that in 2003, the Department of Main Roads resumed part of the respondent’s land, including a block wall, which it demolished and is yet to replace. It is submitted that the documents are relevant to the home owners claim under section 70(3)(f) regarding a withdrawal of a communal facility or service previously provided at the park.
The respondent submits that these documents relate to a separate dispute between it and the Department of Main Roads which will not establish or further the applicant’s claims and are not directly relevant to those claims. The respondent argues that there has been no withdrawal of a communal facility or service and that therefore there is no need to disclose any documents concerning these matters.
Further, it argues that the respondent would be unfairly prejudiced by having to provide voluminous documents which are part of an ongoing dispute and therefore confidential. Lastly, it argues that it would not achieve the objects of the legislation for the just, fair, informal, cost efficient and speedy resolution of proceedings.
Decision
The applicants claim is made under sections 70 and 72 of the MHRP Act. Whether there has been a withdrawal of a communal facility or service is a live issue for determination at the final hearing of the proceeding. I am satisfied that these documents may be relevant to the issues for determination by the tribunal.
However, it may be that there is a large volume of documents related to this request in the respondent’s possession, not all of which are relevant. Further, although it is not entirely clear from the respondent’s submissions, it may be that some of the material may arguably be privileged and this issue may require further consideration to determine whether they should be produced to the applicant.
Accordingly, I will direct that the respondent provide the correspondence to the tribunal with an index and with notations on the index indicating any documents in relation to which it is argued that privilege attaches or there is other reasonable excuse not to produce them. The tribunal can then at an appropriate time examine the documents to determine which, if any of them, are to be produced to the applicant.
Item 2: Evidence of the yearly hire cost of the temporary fence from Australian Temporary Fencing from 2004 to 2009
Submissions
The applicants submit that this documentation is relevant essentially because the respondent makes the statement in its filed material that the hired security fence is costing it money. It appears from the submissions that the applicants intend to argue in the substantive matter that a temporary fence should not have been in place for 6 years and that this diminishes their security. Further, the applicants contend that inevitably they are paying for the costs of the temporary fence through their site fees which must affect the amount available to repair and maintain the residential park.
In the applicant’s most recent submission, they seek to extend the ambit of Item 2 to include the respondent’s bank statements showing the source of payments for the temporary fencing.
The respondent submits that the documents are not relevant to the proceedings, and instead are private business documents. It is argued that the costs associated with the fencing have not been passed on to home owners, nor used as a reason for any increase in site rent. The respondent submits that the disputed increase in site rent was an increase in accordance with CPI and increases in local government charges and land tax. Therefore, the respondent suggests that the documents cannot be required to be disclosed.
Further, the respondent argues that the applicants seek documents to demonstrate the costs are not being passed on to home owners and no such documentation exists. Lastly, it suggests that arguments that the funds to pay for the cost of the fence is diverted from funds allocated for repairs and maintenance are speculative and that the respondent’s material shows it has carried out improvements and extensive maintenance.
Decision
Although the application may have been triggered by a CPI site rent increase, it is broader in scope. The applicants seek orders under section 72 of the MHRP Act, as well as section 70. Further, the respondent has raised this matter in its material. Contrary to the respondent’s submissions that the applicants seek these documents to demonstrate ‘that the costs are not passed on to home owners’, the documents sought are precisely and positively identified as those relating to the hire costs of the temporary fencing, and given the respondents response, evidently exist.
It appears that the documents sought may be relevant to the proceeding. Arguments have not been advanced by the respondent to the effect that there is any other reasonable excuse not to produce them. I will direct that the respondent produce them. However, it is clear that the notice to produce as issued does not extend to requiring production of the respondent’s bank statements to demonstrate the source of payment of the expenses.
Item 3: The rates notices for Lot 2 and Lots 52/54 from the date of acquisition of Lots 52/54 to 2007
Submissions
The applicants submit that they require these documents in order to examine ‘X’ in the formula used to calculate the site rental increase. They assert that rate notices available show that residents have been paying rates on the vacant land concerned for the past 2 years and seek to ascertain how long they have been paying the charges as this may be relevant to the decision to be made in relation to the substantive application. The applicants’ most recent submission states that the applicants wish to ascertain how long they have been paying ‘this additional charge as it may have bearing’ on the orders they seek regarding recalculation of the site fees.
The respondent again argues that the documents are not relevant to the proceedings. They submit that the documents relate to previous periods and have not been used in calculations to determine the value of ‘X’ for the site rental increase which the tribunal is to consider. The respondent submits than an historical enquiry as to previous increases in site rent cannot be undertaken: the applicants had 28 days after a notice of increase to dispute the increase. It is argued that the applicants cannot years later seek to review all past increases. Time limits are imposed for a reason and it would be unfair to the respondent and not in the interests of justice to allow the applicants to examine matters after a significant period of years has elapsed.
Decision
The application before the tribunal is made on two bases. The first relates to issues raised regarding a 2009 CPI site rental increase and is made under section 70 of the MHRP Act. The second relates to an application under 72 of the MHRP Act for reduction of rent as a result of decreased amenities or communal facilities or services.
The documents requested are historical and do not relate to the consideration of the first or the second elements of this application. This being so, the documents requested are not relevant to the issues which must be determined by the tribunal on the current application and in my view, this is a reasonable excuse not to produce them. I will direct that the respondent is not required to comply with this aspect of the notice to produce.
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