Hall & Ors v Bremer Waters Over 55’s Lifestyle Resort Management Pty Ltd

[2020] QCAT 470

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:  Hall & Ors v Bremer Waters Over 55’s Lifestyle Resort

Management Pty Ltd [2020] QCAT 470

PARTIES:GEOFFREY HALL BRIAN MCCARTHY TREVOR KUCKS ALISON SMITH GWEN MULLER JOHN WILSON

BRONWEN RAYNER
(applicants)

v

BREMER WATERS OVER 55’S LIFESTYLE RESORT MANAGEMENT PTY LTD

(respondent) APPLICATION NO/S:    OCL109-19

MATTER TYPE:             Other civil dispute matters DELIVERED ON:  1 December 2020

HEARING DATE:          On the papers HEARD AT:  Brisbane

DECISION OF:               Member Cranwell

ORDERS:  The increase in site rent set out in the notice dated 27

May 2019 is to commence on 12 July 2019, rather than on 1 July 2019.

CATCHWORDS:            REAL PROPERTY – MANUFACTURED HOMES –

SITE AGREEMENT DISPUTE – where notice given for increase in site rent – whether notice compliant

Manufactured Homes (Residential Parks) Act 2003 (Qld), s 69, s 69B, s 69E, s 70

REPRESENTATION:

Applicant:  Self-represented

Respondent:  Self-represented

APPEARANCES:           This matter was heard and determined on the papers

pursuant to s 32 of the Queensland    Civil     and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

The applicants are residents of the Gateway Lifestyle Bremer Waters residential park. On 27 May 2019, the respondent issued to the applicants a notice of increase in site rent purportedly under s 69 of the Manufactured Homes (Residential Parks) Act 2003 (Qld) (‘the Act’). Relevantly, the notice:

(a)specified the amount of the increase in site rent was from $172.85 to $176.55;

(b)stated that the basis for increasing the site rent was on CPI and increased operating costs above CPI;

(c)set out the calculation for the increase;

(d)specified that the increase in rent was to take effect from 1 July 2019; and

(e)was dated 27 May 2019.

It is not in dispute that a previous increase in site rent took effect on 12 July 2018. Section 69(3) of the Act provides:

The site rent can not be increased as provided for under the site agreement unless the park owner complies with sections 69A to 69E.

Section 69B(2) of the Act provides:

If the site rent has been increased under this division, the park owner must not increase the site rent under this division on any basis provided for in the site agreement within 1 year (the site rent year) after the day the site rent was last increased under this division.

Section 69E(1) provides:

At least 35 days before the general increase day for the eligible sites, the park owner must give the home owner for each eligible site a notice (a general increase notice) stating the following—

(a)  the amount of the proposed increased site rent;

(b)  the basis for increasing the site rent;

(c)   how the amount of the proposed increased site rent has been worked out using the basis;

(d)  the general increase day;

(e)  the day the notice is given to the home owner.

It is apparent that the notice specifies all of the matters set out in s 69E(1). In particular, in response to the applicants’ submissions:

(a)As noted above, the notice was dated 35 days before the general increase date. In the absence of evidence that the notice was given after this date, I consider that dating the notice is sufficient to satisfy s 69E(1)(e).

(b)The Act does not require the general increase day to be a site rent payment day.

(c)The notice describes the description of variable X in the formula as ‘Annual increase (above CPI) in operating costs for the park’. The site agreement describes variable X as ‘the increase in Local Government Charges’. While there is a discrepancy in terminology, the respondent has provided evidence that the increase in local government charges was in fact used in the calculations.

It is, however, apparent that the respondent did not comply with s 69B(2), as the increase in site rent was to take effect within one year of the previous increase. Section 70(4) of the Act provides the Tribunal with the following powers:

If the home owner applies under subsection (3), 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;

(d)  another order the tribunal considers appropriate.

The applicants seek orders that the site rent be increased by CPI only. However, I do not consider that an incorrect description in the notice of variable X would justify this order, where the correct figures were used in the actual calculations. I do, however, consider it appropriate to order that the increase commence on 12 July 2019, which is one year after the previous increase, rather than on 1 July 2018.