Haraba Pty Ltd as trustee for the Haraba Trust t/as Brisbane Gateway Resort v Mortley
[2014] QCATA 313
•16 October 2014
| CITATION: | Haraba Pty Ltd as trustee for the Haraba Trust t/as Brisbane Gateway Resort v Mortley [2014] QCATA 313 |
| PARTIES: | Haraba Pty Ltd as trustee for the Haraba Trust t/as Brisbane Gateway Resort (Applicant/Appellant) |
| v | |
| Gerald Thomas Mortley and Alecia Abujen Mortley (Respondents) |
| APPLICATION NUMBER: | APL408 -14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe OAM |
| DELIVERED ON: | 16 October 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application to stay a decision dated 12 September 2014 for application OCL025 -14 is refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – whether grounds for leave to appeal Dearman v Dearman (1908) 7 CLR 549 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
Mr and Ms Mortley live in the Brisbane Gateway Resort, which operates under the Manufactured Homes (Residential Park) Act 2003 (Qld). They have a contract for the sale of their home but the sale is subject to consent from the Resort’s operator, Haraba Pty Ltd. Haraba refused to consent to the sale unless the purchaser paid Haraba an administration charge of $32,000. The purchaser refused to pay the charge so the dispute came before the tribunal. On 12 September 2014, the tribunal ordered that Haraba consent to the sale and withdraw its claim for a charge of $32,000.
Haraba has appealed the tribunal’s decision. It also wants a stay of that decision.
Haraba submits that the tribunal’s orders operate to effect the assignment of Mr and Ms Mortley’s site agreement to the purchaser before the expiry of the appeal period and before a determination by the appeal tribunal. It points out that this means the contract for sale will be completed, Mr and Ms Mortley will have disposed of their interest in their home and the purchaser will have taken possession.
Haraba submits that, if the decision is not stayed, the consequences are practically irreversible. The sale cannot be undone. Mr and Ms Mortley cannot return to their home. The purchaser will be living in the resort. It says that all parties would, therefore, be severely disadvantaged if a stay was not granted.
Haraba submits that, if the appeal is not successful, the delay in effecting the sale would be ‘minor’. It submits that it has good prospects of a successful appeal.
It is evident from the learned Member’s decision that Haraba isn’t so concerned with the transfer from Mr and Ms Mortley to the purchaser but that it is paid a fee for the privilege. The fact that Haraba was ‘transitioning out of the provision of mobile home sites’[1] might explain the magnitude of the charge, but, as the learned Member observed[2], it can also be seen as an attempt to future proof itself against termination.
[1]Reasons for decision at [3](g)(ii).
[2]Reasons for decision at [33].
Refusing the stay will not dilute Haraba’s right to impose a significant charge on transfer, if the appeal tribunal overturns the learned Member’s decision. It might affect Haraba’s ability to recover that charge, but the tribunal is not so concerned with enforcement. Haraba’s submissions did not suggest, in any detailed way, that Mr and Ms Mortley could not pay the charge. The purchaser, who might be required to pay the charge, was not a party to the dispute before the tribunal.
Mr and Ms Mortley signed the agreement for sale in May 2013, over twelve months ago. They are entitled to move on with their lives and there is no sense in forcing them to stay in the Resort pending the decision of the appeal tribunal. The application to stay is refused.
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