Gentry v Surtie Enterprises Pty Ltd trading as Greenbank Gardens (No 3)
[2010] QCAT 254
•11 June 2010
CITATION: Gentry & Ors v Surtie Enterprises Pty Ltd trading as Greenbank Gardens (No 3) [2010] QCAT 254
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 Masonv Surtie Enterprises Pty Ltd trading as Greenbank Gardens
APPLICATION NUMBER: MH021-09
MATTER TYPE: Other civil dispute matters
HEARING DATE: 24 May 2010
HEARD AT: BRISBANE
DECISION OF: G Spender
DELIVERED ON: 11 June 2010
DELIVERED AT: BRISBANE
ORDERS MADE:
1. The application is dismissed
2. The counterclaim is dismissed
3. There will be no order as to costs
CATCHWORDS : Manufactured homes – validity of site rent increase – whether reduction of site rent justified – refusal by homeowners to sign site agreements – jurisdiction – whether power to order signing of site agreements.
Manufactured Homes (Residential Parks) Act 2003, sections 69,70,72 & 140APPEARANCES and REPRESENTATION (if any):
APPLICANTS: Ms Murchison
RESPONDENT: Mr Surtie, Chief Executive Officer
REASONS FOR DECISION
Introduction
This is a joint application filed in June 2009 in the Commercial and Consumer Tribunal under the Manufactured Homes (Residential Parks) Act 2003 (“the MHRPA”) by homeowners (“the Applicants”) who reside at Greenbank Gardens (“the park”) which is situated at 3651 Mt Lindesay Highway, Park Ridge. The park is owned and operated by Surtie Enterprises Pty Ltd trading as Greenbank Gardens (“the Respondent”). The Applicants own respectively twelve (12) manufactured homes positioned in the park and they seek orders under sections 69 and 70 of the MHRPA requiring the Respondent to reduce the site rent payable following a site rent increase notified on 25 June 2009 and imposed on 25 July 2009. The site rent was increased from $118.35 per week to $126.45 per week.
The Applicants claim that the figure “x” in the formula in the site agreements used to calculate the annual site increase is incorrect, with the result that the site rent increase imposed in July 2009 is at least $2.18 per week in excess of the correct amount. The Applicants seek a reduction under section 69 in respect of the incorrect calculation and seek a further reduction in site rent under section 72 of the MHRPA on the grounds that the amenity of communal facilities in the park has decreased, and, in the case of Applicants Gentry and Murchison, that communal facilities have been withdrawn.
The Respondent alleges in its defence that the annual site rent increase has been correctly calculated and that there has been no reduction in the amenity of the park or the withdrawal of any community facility since the Applicants entered into their site agreements. The Respondent seeks dismissal of the Applicants’ claim and by way of counterclaim seeks an order that Applicants Gentry and Murchison, who have not signed licence agreements as proposed by the Respondent in respect of their respective sites, provide signed copies of the site agreements to the Respondent.
On 1 December 2009, the Commercial and Consumer Tribunal was abolished and matters under the MHRPA came under the jurisdiction of the Queensland Civil and Administrative Tribunal (“the Tribunal”): see sections 245, 256 and 271 of the Queensland Civil and Administrative Tribunal Act 2009 (“the QCAT Act”). Pursuant to section 271 in this pending proceeding the Tribunal can only make a decision that the Commercial and Consumer Tribunal could have made.
Claim for reduction in site rent
The provisions of the MHRPA relevant to the Applicants’ claims are sections 69, 70(1) and (2), and 72 which provide:
69 Notice of increase in site rent
(1) This section applies if a site agreement—
(a) provides for an increase in the site rent payable under the agreement; and
(b) states how the amount of the increase is to be calculated.
(2) If the park owner wishes to increase the site rent under this section, the park owner must give the home owner a notice stating the following—
(a) the amount of the increased site rent;
(b) how the increased site rent has been calculated;
(c) the day the increased site rent is first payable (the increase day);
(d) if the home owner considers the increase is excessive, the home owner may apply to the tribunal, within 28 days after receiving the notice, for an order reducing the amount of, or setting aside, the increase.
70 Home owner may apply to tribunal for order about site rent increase
(1) This section applies if—
(a) the park owner for a residential park gives a home owner notice, under section 69, of an increase in the site rent payable under the site agreement between the parties; and
(b) the home owner considers the increase is excessive.
(2) On application by the home owner made within 28 days after receiving the notice, the tribunal may make any of the following orders—
(a) an order reducing the amount of the increase by a stated amount;
(b) an order setting aside the increase;
(c) an order confirming the increase on the conditions, if any, the tribunal considers appropriate; another order the tribunal considers appropriate.
(d) another order the tribunal considers appropriate.
….
72 Site rent reduction on application to tribunal by home owner
On application by the home owner under a site agreement, the tribunal may make an order that the site rent payable under the agreement be reduced by an amount the tribunal considers appropriate if it is satisfied—
(a) the amenity or standard of the residential park’s common areas and communal facilities has decreased substantially since the agreement was entered into; or
(b) a communal facility or service provided at the park when the agreement was entered into has been withdrawn.
The formula to be applied in calculating the annual site rent increase in terms of the licence agreement, which is the form of site agreement in use in the park, is as follows:
R x C + (X/Y) + (Z/Y)
Where: “R” represents the site rent paid during the preceding year;
“X” represents the increase in local government charges;
“Z” is the increase in land tax;
“Y” represents the total number of sites in the park;
“C” represents the percentage increase of the CPI for the preceding year
There is no dispute in respect of any of the figures used in the formula other than the figure which has been used for “X”, namely the increase in local government charges. The Applicants argue that the figure for “X” needs to be reduced by 13.5% because 13.5% of the land area of the park which is the subject of Logan City Council (“the Council”) rates notices is not in fact part of the residential park. The Applicants dispute on this basis only the General Rate charged.
The evidence establishes that the disputed creek and bushland area is currently fenced off from the rest of the park, but residents of the park have access through a security gate to the area if they wish to walk through the bushland. It was a condition of development of the park that this bush area be dedicated to the Council as bushland. This area forms part of the total land area owned by the Respondent only until such time as the Council seals a survey plan and this area is transferred to the Council.
Rate notices for the years 2008 and 2009 are in evidence and I am satisfied on examination of the notices that the park is rated solely on the basis on the number of sites in the park and not upon the land area of the park. The park is rated as a residential institution in the category of 211 – 275 sites, there being 240 sites in the fully developed park. The existence within the total rateable area of the 13.5% of the total land area which is fenced off bushland makes no difference to the sum of General Rates payable. I further find that the Respondent is currently paying the minimum stipulated General Rate as per the rating schedule used by the Council, with the result that when the disputed bushland is handed over to the Council, the General Rates payable will not decrease.
10. The Tribunal finds in the circumstances that there has been no miscalculation of the figure “X” and the application must be dismissed in this regard.
11. I now turn to the Applicants’ allegations with respect to the failure of the Respondent to properly clean and maintain communal facilities. The issue is whether the standard of common facilities has decreased substantially since the Applicants commenced to reside in the park in 2006 and 2007.
12. A large number of photographs of the park are in evidence and the Chairperson and Secretary of the Greenbank Gardens Homeowners Committee have filed a joint statement on behalf of the Committee in support of the Respondent’s case. They dispute the Applicants’ claim that there has been a reduction in facilities and they state that on the contrary there has been a “steady and sustained” improvement in facilities over the past seven (7) years.
13. I am satisfied on the material before me that there have been shortcomings in the cleaning of communal facilities as evidenced by dirty windows, dirty sliding door tracks and dirty toilets in the Lodge, and stained hand basins in the change rooms of both swimming pools. However these are relatively minor matters and the Homeowners Committee members state that they have discussed with the Respondent the complaints raised by the Applicants and management has agreed to draw up a schedule for regular cleaning and maintenance of the recreation facilities in the park. I am not satisfied that the failure to properly clean the communal facilities has resulted in a substantial decrease in the amenity of the park.
14. I accept the Respondent’s explanation that the delay in repairing fencing along the creek which runs through the property following major flooding in 2008 was due to the time taken to have the relevant insurance claim assessed and approved, which matters were beyond the control of the Respondent. I accept that this was also the reason for the delay in having the bowling green repaired following inundation during the same heavy rain in 2008.
15. I similarly find that there is no substance to the claim of fault on the part of the Respondent in respect of delay in repairing damage done to the front gate when a resident accidentally drove his vehicle into the gate.
16. The photographic evidence establishes that road works are being carried out on the boundary of the park and that the Respondent has hired a temporary security fence to secure this area of the park. When the Department of Main Roads resumed part of the park in 2003 they demolished a block wall which necessitated the hiring of the temporary security fence by the Respondent. I find that the temporary security fence was in existence when the Applicants moved into the park and has not changed or deteriorated in any way since that time. I accept that the reason the demolished wall has not been replaced is because of an ongoing dispute with the Department of Main Roads regarding this area of the park. However Mr Surtie, the Chief Executive Officer of the Respondent, who gave evidence on behalf of the Respondent, informed the Tribunal that this dispute has recently been resolved and a new wall has been erected, and in approximately thirty (30) weeks a fence/sound barrier will be erected by the Department of Main Roads along the park boundary. The presence of the temporary fencing has not in my view resulted in any lessening of the amenity of the park as a secure gated community.
17. With respect to the various other complaints and concerns raised by the Applicants, I am not satisfied that they are sufficiently serious to have resulted in a substantial decrease in amenity which would justify a reduction in rent.
18. With respect to the alleged withdrawal of services to Ms Gentry and Ms Murchison, the Tribunal finds that the question as to which residents are accepted as members of the Greenbank Gardens Bowls Club is not a matter in respect of which the Respondent has any responsibility or authority. The Bowls Club is not run by the Respondent but by the residents of the park themselves. The refusal by the Bowls Club to admit Ms Gentry and Ms Murchison to membership does not constitute in my view any withdrawal by the Respondent of a facility or service to those women. There is no evidence that the Respondent has refused to allow them to exercise their right to use the bowling green.
19. I am not satisfied that the preconditions which enliven the jurisdiction to order a reduction of site rent under section 72 are established, and the Applicants’ claim in that regard will be dismissed.
Counterclaim
Refusal of Ms Gentry and Ms Murchison to sign site agreements
20. Mr Surtie and Mr Bloomfield, the Park Manager, say in their joint statement dated 26 October 2009 that Ms Gentry and Ms Murchison moved into the park in July 2007. It appears that at that time they were each given by the Respondent a copy of a site agreement in Form 2 under the MHRPA and asked to sign the agreement. Despite numerous requests since that date they have refused to sign the site agreement in the terms proposed by the Respondent.
21. By letters dated 19 May 2009 Ms Gentry and Ms Murchison respectively informed Mr Surtie that they had amended the proposed Form 2 agreement to reflect the terms and conditions promised to them upon entering the park and asked Mr Surtie to provide them with copies of Form 2 in the amended form. The Respondent refuses to enter into the Form 2 agreement in the terms proposed by Ms Gentry and Ms Murchison.
22. The Respondent seeks an order requiring Ms Gentry and Ms Murchison to enter into a site agreement in the terms proposed by it. The Applicants have not addressed the counterclaim by way of statements or submissions.
23. In their joint statement Mr Surtie and Mr Bloomfield further state that after moving into the park in July 2007 neither Ms Gentry nor Ms Murchison wrote to the Respondent or informed the Respondent they did not agree with the terms of their proposed site agreement. The Respondent only became aware of the alleged “negotiating” of their site agreements by way of the above mentioned letter in May 2009, nearly two (2) years after they had moved into the park.
24. The Respondent’s evidence indicates that Ms Gentry and Ms Murchison have frequently referred to their site agreements in correspondence with park management. For example, in a letter to the Respondent dated 29 September 2008 they stated,
“We believe as per our site agreement and as marketed in your brochure and website that we and every other resident here at Greenbank Gardens have the right to utilise the facilities available to us including the use of community buildings and equipment”.
25. The evidence also shows that Ms Gentry and Ms Murchison received without dispute a number of Notices to Remedy Breach in respect of their site agreements without dispute.
26. The evidence establishes that Ms Gentry and Ms Murchison entered into possession of their respective homes, paid site rent and site rent increases and for a period of nearly two (2) years acted as if they were bound by the terms of the written site agreement in Form 2 proposed by the Respondent. At no time during the period July 2007 to May 2009 did they initiate any negotiation with respect to terms of the agreement or otherwise dispute these terms. In the circumstances I find that Ms Gentry and Ms Murchison’s acceptance of a Form 2 site agreement in the terms proposed by the Respondent may be implied by their conduct. I find that they are bound by a Form 2 agreement whose terms are as contained in annexure GG30 to the joint statement of Mr Surtie and Mr Bloomfield (exhibit 5).
27. There is no express provision contained in the MHRPA which permits the Tribunal to order a homeowner to sign a site agreement. Section 25 imposes responsibility on the park owner to ensure that there is a written site agreement, but section 25 (7) provides that nothing in section 25 affects the enforceability of a site agreement that is not written. There is no express obligation under the MHRPA requiring a home owner to sign the site agreement which the park owner must provide to the home owner under section 29(1). I do not consider that such an obligation may be inferred, as the Respondent submits, from the section 25(6) requirement that a park owner keep signed copies of the site agreement until 1 year after the agreement is terminated. That obligation on the part of a park owner only arises when a site agreement is signed by the home owner and returned to the park owner. In the circumstances here the Respondent is not in breach of its section 25(6) obligation in respect of the site agreements of Ms Gentry and Ms Murchison.
28. The Tribunal is of the view that there is no obligation either express or implied under the MHRPA which requires Ms Gentry and Ms Murchison to sign the site agreements in Form 2 by which the Tribunal has found they are bound. Even if there were such an obligation the Tribunal does not have power to enforce it by ordering that the site agreements be signed.
29. The order which the Respondent seeks is in the nature of a mandatory injunction and the general power under section 140 to resolve site agreement disputes did not in my view enable the Commercial and Consumer Tribunal to grant an injunction. I am satisfied that the Tribunal has no power in this pending proceeding to force either Ms Gentry or Ms Murchison to sign a written site agreement, even a site agreement which is found to be legally binding. In the circumstances the counter claim will be dismissed.
Orders
The application is dismissed
The counterclaim is dismissed
There will be no order as to cost
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