Haraba Pty Ltd v Castles - [2007] QCA 206

SUPREME COURT OF QUEENSLAND

CITATION:

Haraba P/L v Castles [2007] QCA 206

PARTIES:

HARABA PTY LIMITED ACN 010 502 468 as trustee for THE HARABA TRUST trading as GATEWAY VILLAGE RESORT
(applicant/appellant)
v
DOROTHY CASTLES
(respondent)

FILE NO/S:

Appeal No 10612 of 2006
DC No 4121 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

22 June 2007

DELIVERED AT:

Brisbane

HEARING DATE:

10 May 2007

JUDGES:

Williams and Holmes JJA and Philippides J
Separate reasons for judgment of each member of the court, each concurring as to the orders made

ORDER:

1. Grant leave to appeal
2. Allow the appeal and set aside the orders of the Tribunal that the application be dismissed and of the District Court that the appeal to that court be dismissed
3. Remit the matter to the Commercial and Consumer Tribunal for the application to be heard and determined according to law
4. Set aside the order of the District Court that the applicant pay the respondent's costs of the application and appeal to that court
5. Order that the respondent pay the applicant's costs of the application and appeal to the District Court and of the application and appeal to this court to be assessed
6. Grant the respondent an indemnity certificate pursuant to the Appeal Costs Fund Act with respect to the costs ordered to be paid to the applicant

CATCHWORDS:

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – INTERPRETATION OF ACTS AND CLAUSES – PARTICULAR ACTS AND ORDINANCES – QUEENSLAND – where applicant was owner of resort consisting of manufactured home sites, holiday cabin sites, caravan sites and communal facilities – where respondent entered site agreement with applicant for use of site 42 as a manufactured home site – where agreement under ambit of Manufactured Homes (Residential Parks) Act 2003 (Qld) – where under the Act the "owner's" rights under the agreement continue until terminated – where right's conferred are contractual in nature – where applicant applied to the Commercial and Consumer Tribunal for an order terminating the agreement – where applicant proposed a change of use of site 42 from a manufactured home site to a holiday cabin site – whether a particular site was "part of the park" for purposes of s 38(1)(f) of the Act – whether the applicant intended to use a defined part of the park for "another purpose" – whether s 38(3) mandates a new town planning approval – whether leave should be granted

Appeal Costs Fund Act 1973 (Qld)
Commercial and Consumer Tribunal Act 2003 (Qld), s 100
Manufactured Homes (Residential Parks) Act2003 (Qld), s 8, s 10, s 11, s 13, s 14, s 16, s 17, s 23, s 26, s 36, s 37, s 38

COUNSEL:

M Hinson SC for the appellant
A J H Morris QC, with G D Bassett, for the respondent

SOLICITORS:

Hopgood Ganim Lawyers for the appellant
Tenants' Union of Queensland Incorporated for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] QCA 206
Decision Date: 22 June 2007

CaseChat Overview and Summary

Haraba Pty Ltd, the owner of a resort comprising various types of sites, including manufactured home sites, holiday cabin sites, caravan sites, and communal facilities, was involved in a legal dispute with Castles. Castles had entered into a site agreement with Haraba Pty Ltd for the use of site 42 as a manufactured home site, under the provisions of the Manufactured Homes (Residential Parks) Act 2003 (Qld). The Act stipulates that the owner's rights under the agreement endure until terminated, with these rights being of a contractual nature. Haraba Pty Ltd applied to the Commercial and Consumer Tribunal for an order terminating the agreement, intending to change the use of site 42 from a manufactured home site to a holiday cabin site. The dispute centred around whether site 42 was "part of the park" as defined in section 38(1)(f) of the Act, and whether Haraba Pty Ltd intended to use a part of the park for another purpose, potentially necessitating new town planning approval as per section 38(3). The court was tasked with deciding these critical legal issues.

The court examined whether site 42 constituted "part of the park" under section 38(1)(f) of the Act and whether Haraba Pty Ltd's intended change of use mandated new town planning approval under section 38(3). The court found that the Tribunal had erred in its interpretation of the Act, leading to the dismissal of Haraba Pty Ltd's application. The court granted leave to appeal, allowing the appeal, and set aside the orders of the Tribunal and the District Court. It was determined that the matter should be remitted to the Commercial and Consumer Tribunal for proper hearing and determination according to law. The court also set aside the order for Haraba Pty Ltd to pay Castles' costs of the application and appeal to the District Court, ordering instead that Castles pay Haraba Pty Ltd's costs of both the application and appeal to the District Court and this court, to be assessed. Finally, the court granted Castles an indemnity certificate pursuant to the Appeal Costs Fund Act with respect to the costs ordered to be paid to Haraba Pty Ltd.

Orders

Orders of the court

1. Grant leave to appeal

2. Allow the appeal and set aside the orders of the Tribunal that the application be dismissed and of the District Court that the appeal to that court be dismissed

3. Remit the matter to the Commercial and Consumer Tribunal for the application to be heard and determined according to law

4. Set aside the order of the District Court that the applicant pay the respondent's costs of the application and appeal to that court

5. Order that the respondent pay the applicant's costs of the application and appeal to the District Court and of the application and appeal to this court to be assessed

6. Grant the respondent an indemnity certificate pursuant to the Appeal Costs Fund Act with respect to the costs ordered to be paid to the applicant

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Haraba P/L v Castles [2007] QCA 206
PARTIES:	HARABA PTY LIMITED ACN 010 502 468 as trustee for THE HARABA TRUST trading as GATEWAY VILLAGE RESORT (applicant/appellant) v DOROTHY CASTLES (respondent)
FILE NO/S:	Appeal No 10612 of 2006 DC No 4121 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Civil)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	22 June 2007
DELIVERED AT:	Brisbane
HEARING DATE:	10 May 2007
JUDGES:	Williams and Holmes JJA and Philippides J Separate reasons for judgment of each member of the court, each concurring as to the orders made
ORDER:	1. Grant leave to appeal 2. Allow the appeal and set aside the orders of the Tribunal that the application be dismissed and of the District Court that the appeal to that court be dismissed 3. Remit the matter to the Commercial and Consumer Tribunal for the application to be heard and determined according to law 4. Set aside the order of the District Court that the applicant pay the respondent's costs of the application and appeal to that court 5. Order that the respondent pay the applicant's costs of the application and appeal to the District Court and of the application and appeal to this court to be assessed 6. Grant the respondent an indemnity certificate pursuant to the Appeal Costs Fund Act with respect to the costs ordered to be paid to the applicant
CATCHWORDS:	STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – INTERPRETATION OF ACTS AND CLAUSES – PARTICULAR ACTS AND ORDINANCES – QUEENSLAND – where applicant was owner of resort consisting of manufactured home sites, holiday cabin sites, caravan sites and communal facilities – where respondent entered site agreement with applicant for use of site 42 as a manufactured home site – where agreement under ambit of Manufactured Homes (Residential Parks) Act 2003 (Qld) – where under the Act the "owner's" rights under the agreement continue until terminated – where right's conferred are contractual in nature – where applicant applied to the Commercial and Consumer Tribunal for an order terminating the agreement – where applicant proposed a change of use of site 42 from a manufactured home site to a holiday cabin site – whether a particular site was "part of the park" for purposes of s 38(1)(f) of the Act – whether the applicant intended to use a defined part of the park for "another purpose" – whether s 38(3) mandates a new town planning approval – whether leave should be granted Appeal Costs Fund Act 1973 (Qld) Commercial and Consumer Tribunal Act 2003 (Qld), s 100 Manufactured Homes (Residential Parks) Act2003 (Qld), s 8, s 10, s 11, s 13, s 14, s 16, s 17, s 23, s 26, s 36, s 37, s 38
COUNSEL:	M Hinson SC for the appellant A J H Morris QC, with G D Bassett, for the respondent
SOLICITORS:	Hopgood Ganim Lawyers for the appellant Tenants' Union of Queensland Incorporated for…