Gilmore v Lawson
[2014] QCAT 620
•28 November 2014
| CITATION: | Gilmore & Ors v Lawson [2014] QCAT 620 |
| PARTIES: | Alison Robin Lockhart Gilmore David Gilmore Allan Both Jennifer Both Kevin Goldsworthy Ann Goldsworthy Allan Paxman Pamela Paxman Peter Raine Joy Raine Jan Rouw Ineke Rouw Robert Woolfe Jacqueline Woolfe Christopher O’Donnell (Applicants) |
| v | |
| Paul Lawson and Jackie Lawson t/a Esk Caravan Park (Respondents) |
| APPLICATION NUMBER: | OCL062-14 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | 28 November 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Hughes |
| DELIVERED ON: | 28 November 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. It is declared that any amount per night charged for visitors and any amount charged for extra parking of Home Owners do not comply with sections 78 to 81 of the Manufactured Homes (Residential Parks) Act 2003 and are therefore void and of no effect; and 2. The Counter-Application is dismissed. |
| CATCHWORDS: | MANUFACTURED HOMES – SITE AGREEMENT DISPUTE –– where park owners sought to charge amounts for overnight visitors and extra parking – whether amounts are changes to park rules – where site agreements charge weekly amount for additional persons but were silent on amount per night and amount for extra parking – where park rules refer to nightly visitor fee and extra parking fee but no amounts – where differing versions of park rules – where no agreement on actual amounts of each charge – where amounts of each charge are therefore changes to park rules – where non-compliance with statutory process to change park rules – whether counter-application valid – where counter-application not filed in correct form – where no basis or supporting material for counter-application Manufactured Homes (Residential Parks) Act 2003, ss 4, 14, 14A, 19, 21, 27, 78, 80, 81, 82, 140 Gant and Anor v Emmetlow Pty Ltd [2013] QCAT 62 Tamberra Pty Ltd as trustee for The Max Ahlfeld Family Trust v The Home Owners Committee, Jones & Ors [2013] QCAT 299 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Ann Goldsworthy appeared on behalf of all Applicants |
| RESPONDENT: | Paul Lawson and Jackie Lawson appeared in person |
REASONS FOR DECISION
What is this Application about?
The Respondents are park owners who seek to charge an amount per night for visitors and an amount to park extra vehicles. The Applicants are manufactured home owners who object to these charges.
The Park Owners claim that the Home Owners cannot object to the requirement to pay these charges because they have been in effect for more than 17 years and are therefore not a “proposed change” to the park rules.
What is the Tribunal’s jurisdiction?
The Tribunal may make any order it considers appropriate to resolve a site agreement dispute.[1] The application is a dispute about whether home owners must pay charges for overnight visitors and extra parking under their site agreements or park rules.
[1]Manufactured Homes (Residential Parks) Act 2003 s 140.
A dispute about parties’ rights and obligations under a site agreement is a site agreement dispute.[2] A site agreement includes park rules.[3]
[2]Ibid s 14A(1)(a).
[3]Ibid ss 14(b) and 19(c).
The Tribunal therefore has jurisdiction over the dispute.
Must Home Owners pay overnight visitor fees and extra parking fees?
Apart from Mr and Mrs Goldsworthy’s site agreement, the Home Owners signed site agreements with the current Park Owner or former park owner. As successors in title to the former park owner who signed Site Agreements, the current Park Owners obtain the benefit and are subject to the obligations of those Agreements.[4]
[4]Ibid s 27.
Neither the former park owner nor the current Park Owner signed Mr and Mrs Goldsworthy’s Site Agreement.[5] It is therefore an offer by Mr and Mrs Goldsworthy open for acceptance by the Park Owner until withdrawn by Mr and Mrs Goldsworthy.
[5]Site Agreement executed by Ann Goldsworthy and Kevin Goldsworthy on 15 October 2008.
Some site agreements provide for a weekly charge for additional persons. Those Home Owners have therefore agreed to pay a fee per week for visitors as follows:
· Mr and Mrs Woolfe – $60 per week[6]
· Mr and Mrs Paxman – $50 per week[7]
· Mr O’Donnell – $70 per week[8]
· Mr and Mrs Both – $70 per week[9]
· Mr and Mrs Rouw – $50 per week[10]
· Mr and Mrs Raine – $50 per week[11]
[6]Site Agreement dated 27 March 2014, section 5.
[7]Site Agreement dated 24 November 2008, section 5.
[8]Site Agreement dated 23 December 2009, section 5.
[9]Site Agreement dated 1 March 2009, section 5.
[10]Site Agreement dated 16 October 2008, section 5.
[11]Site Agreement dated 26 June 2010, section 5.
All Site Agreements are silent about a nightly charge for visitors and charges for extra parking. The Park Owners therefore urged me to interpret this charge “per week” as meaning “or part thereof” or “pro rata for less than a week”.
However, the Site Agreements do not say this. At best, the Site Agreements are ambiguous about whether the weekly additional persons charge can be converted to a nightly charge. It is a rule of law that ambiguities in agreements are construed against the person seeking to rely upon it.[12] The former park owner prepared the Agreements with the “Additional Persons” charge. The current Park Owners are seeking to rely upon that charge to apply to overnight visitors. Any ambiguity in interpretation is therefore construed against the Park Owners.
[12]Photo Production Ltd v Securicor Transport Ltd [1980] AC 827 at 847.
Moreover, an object of the Manufactured Homes (Residential Parks) Act 2003 is to enable home owners to make informed choices by being fully aware of their rights and responsibilities in their relationship with park owners.[13] This is achieved by facilitating the disclosure of information.[14] Clarity is the key. If the park owner wanted to impose a nightly charge for visitors or a charge for extra parking, then it would have been a simple matter for the Site Agreements to say that. They do not. Interpreting a Site Agreement to allow a charge not clearly stated is not consistent with the Act.
[13]Manufactured Homes (Residential Parks) Act 2003 s 4(1)(b).
[14]Ibid s 4(2)(b).
I am therefore not satisfied that the Site Agreements allow a charge per night for overnight visitors or for extra parking.
However, park rules are included as terms of Site Agreements.[15] The park rules address overnight visitors and extra parking. The current Act prescribes the matters about which park rules may be made.[16] However, the Park Rules have been in place since before the current Act commenced.[17] This means that the Mobile Homes Act 1989 was in force when the park rules were implemented. That Act did not prescribe the matters about which park rules could be made.
[15]Ibid ss 19(c) and 21.
[16]Ibid s 77(2).
[17]Statutory Declaration of William Darcy Steel sworn 13 November 2014.
The Park Owners provided differing versions of rules printed on rent receipts, signs and notices located throughout the park. Each version purports to cover visitors and parking, yet their wording varies:
Rent Receipt version
Visitors’ vehicles are strictly prohibited from entering The Park. A fee will be charged for additional fees brought into The Park by Occupants.
Overnight Visitors must register and pay before 6.30pm on the night of intended stay. Visitors MUST PAY fees for use of any facilities of the Park.
Amenities Sign version
VISITORS Fee must be paid on arrival if staying overnight or using showers.
Notice version
FEES APPLY FOR DAY VISITORS TO THIS PARK AND TO VEHICLES ENTERING THIS PARK. ANY PERSON WISHING TO ENTER THIS PARK MUST MAKE THEIR PRESENCE KNOWN TO THE PARK MANAGER ON ARRIVAL.
VISITORS $2.20 PER PERSON PER DAY OR PART DAY
VEHICLES $8.80 PER DAY OR PART DAY
Park Rules Document version
These rules replace all previous Park Rules.
CAR PARKING AND VEHICLES One Vehicle per site unless otherwise arranged. Extra vehicles incur costs.
VISITORS A visitor’s fee is charged for all overnight visitors. Overnight visitors must register and pay before 6pm on the night of intended stay.
The Home Owners also provided yet another version of rules:
Esk Caravan Park Rules Document version
These rules are to be read in conjunction with the regulations printed on the back of your rent receipt.
Park facilities are for the enjoyment of all occupiers and their overnight visitors. For the safety and enjoyment of all, rules displayed within the facilities must be strictly observed and the occupier must ensure that his overnight visitors comply. A Park resident must accompany day visitors when using the Park facilities.
Cars are to be parked either within your carport or in the designated car parks situated throughout the park (Maximum of 2 vehicles per site unless approved)
Inconsistencies aside, when reading these rules together it is reasonable to infer an expectation by Home Owners and Park Owners that the Park Owners can charge an amount for visitors and an amount for extra parking. However, none of these rules specifies the amount per night for visitors or the amount for any extra vehicle of a home owner.
Mrs Lawson submitted that residents have always been charged an amount per night for visitors[18] and an amount for extra vehicles[19]. Yet this has been without the rules or site agreements specifying those amounts. The absence of these amounts cannot equate to home owners agreeing to write the park owners a ‘blank cheque’ for visitors each night or for extra parking:
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.[20]
[18]Affidavit of Paul Damien Lawson and Jacqueline Lawson sworn 14 November 2014 and letter Jackie and Paul Lawson to Mr and Mrs Gilmore dated 22 July 2014.
[19]Affidavit of Paul Damien Lawson and Jacqueline Lawson sworn 14 November 2014.
[20]Gant and Anor v Emmetlow Pty Ltd [2013] QCAT 62 at [17].
It cannot be fair for home owners to be bound by an amount of which they were unaware when entering their site agreements and to which they therefore did not agree. I am therefore satisfied that charging an amount per night for visitors and an amount for extra parking are each a “proposed change” to the park rules.
Because charging actual amounts is a “proposed change” to the park rules, the Park Owners must follow the prescribed process to change the park rules.[21] The process requires the park owner to fix a day by when a home owner may object to the change[22] and give at least 28 days’ notice of the proposal to each home owner.[23] The notice must also inform the home owner that the home owner may object to the proposal before the objection closing day and how the objection may be made.[24]
[21]Manufactured Homes (Residential Parks) Act 2003, ss 78 – 81.
[22]Ibid s 78(1)(a).
[23]Ibid s 78(1)(b).
[24]Ibid s 78(2).
The home owners and park owner must then set up a park liaison committee to consider objections if no fewer than five home owners object to the proposal.[25] The committee is to consist of a person chosen by the objectors, the park owner and another agreed person.[26] The Committee must change the proposal if it considers it unreasonable[27] and notify the parties.[28]
[25]Ibid ss 80(1)(a) and (2).
[26]Ibid s 80(3).
[27]Ibid s 81(2).
[28]Ibid s 81(3).
The Park Owners are yet to comply with this process. Instead, the Park Owners have changed the park rules by setting an amount per night for visitors and an amount for extra parking without complying with the prescribed process. The Park Owners have thereby failed to comply with their statutory obligations.
It is not appropriate to declare the proposed changes to be reasonable or unreasonable,[29] because the changes simply do not comply with the Act.[30]
[29]Ibid s 82.
[30]Tamberra Pty Ltd as trustee for The Max Ahlfeld Family Trust v The Home Owners Committee, Jones & Ors [2013] QCAT 299 at [51].
However, the Tribunal may make any order it considers appropriate to resolve a site agreement dispute.[31] Because the changes do not comply with the Act, they are void and of no effect.
[31]Manufactured Homes (Residential Parks) Act 2003 s 140.
The Tribunal’s power to make a declaration is exercisable by a legally qualified member.[32] I therefore declare any amount per night charged for visitors and any amount charged for extra parking of home owners do not comply with the sections 78 to 81 of the Manufactured Homes (Residential Parks) Act 2003 and are therefore void and of no effect.
[32]Queensland Civil and Administrative Tribunal Act 2009 s 60.
Can the Tribunal decide the “counter-claim” by the Park Owners?
The Park Owners ‘counter-claimed’ for orders ‘updating all contracts to the same rate for overnight visitors’ and for Mr and Mrs Gilmore to complete a new Site Agreement.
The Queensland Civil and Administrative Tribunal Rules 2009 require respondents to file any counter-application in the approved form attached as part of their Response.[33] However the Park Owners merely added it as a final paragraph to their affidavit filed on 17 November 2014.
[33]Rule 50.
The Park Owners did not provide any basis for the orders sought or supporting material. The Tribunal must conduct proceedings fairly.[34] The Tribunal must observe the rules of natural justice.[35] Parties must do more than make a generalised complaint in site agreement disputes.[36] When this was put to Mrs Lawson during the hearing, to her credit she indicated she would not be pursuing the counter-claim as part of these proceedings.
[34]Queensland Civil and Administrative Tribunal Act 2009 s 28(2).
[35]Ibid s 28(3)(a).
[36]Wilson & Ors v Leknarf Pty Ltd trading as Australiana Top Tourist Park [2013] QCAT 676 at [13] cited with approval in Pomroy v Emmetlow Pty Ltd [2014] QCATA 074 at [15].
The Park Owner’s counter-application is therefore dismissed.
The appropriate orders are that:
1. It is declared that any amount per night charged for visitors and any amount charged for extra parking of Home Owners do not comply with sections 78 to 81 of the Manufactured Homes (Residential Parks) Act 2003 and are therefore void and of no effect; and
2. The counter-application is dismissed.
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