Harmer v PJD Group Pty Ltd - [2017] QCAT 179

CITATION:	Harmer & Anor v PJD Group Pty Ltd [2017] QCAT 179
PARTIES:	Julia Ann Harmer Robert George Harmer (Applicant)
v
PJD Group Pty Ltd t/as Esk Caravan Park (Respondent)
APPLICATION NUMBER:	OCL055-15
MATTER TYPE:	Other civil dispute matters
HEARING DATE:	24 April 2017
HEARD AT:	Brisbane
DECISION OF:	Dr Cullen, Member
DELIVERED ON:	29 May 2017
DELIVERED AT:	Brisbane
ORDERS MADE:	1. The Tribunal declares that Julie Ann Harmer and Robert George Harmer are homeowners as defined by the Manufactured Homes (Residential Parks) Act 2003 (Qld) and are entitled to receive a written site agreement from PJD Group Pty Ltd, and order PJD Group Pty Ltd to provide the agreement giving effect to the Tribunal’s orders no later than 4:00pm on 15 June 2017. 2. The Tribunal declares that PJD Group Pty Ltd cannot impose a requirement upon Julie Ann Harmer and Robert George Harmer a requirement that their manufactured home be classed as a 1a dwelling in compliance with relevant building certification provisions. 3. Any amounts that Julia Ann Harmer and Robert George Harmer have been charged for visitor fees and electricity service fees be refunded to them by PJD Group Pty Ltd, no later than 4:00pm on 15 June 2017. 4. Any proceedings commenced by PJD Group Pty Ltd pursuant to the Residential Tenancies and Rooming Accommodation Act 2008 (Qld), seeking to terminate Julie Ann Harmer and Robert George Harmer’s tenancy be dismissed.
CATCHWORDS:	Manufactured Homes (Residential Parks) Act 2003 (Qld), s 8(a)(iii), s 10(1), s 11, s 12, s 14(a)(iii), s 77, s 99A Both & Ors v PJD Group Pty Ltd t/as Esk Caravan Park [2016] QCAT 58 Claremont Holdings Pty Ltd v The Chief Executive of the Department of Housing and Public Works; The Chief Executive of the Department of Housing and Public Works v Claremont Holdings Pty Ltd [2015] QSC 349 De Maid v C&K Anderson Pty Ltd [2014] QCAT 10 Harmer v PJD Group Pty Ltd trading as Esk Caravan Park [2016] QCAT 28
APPEARANCES:
APPLICANT:	M Walker of Counsel
RESPONDENT:	Ms Jackie Lawson

REASONS FOR DECISION

The applicants in this matter, Julie Ann Harmer and Robert George Harmer, are a married couple and residents of the Esk Caravan Park, operated and owned by the respondent, PJD Group Pty Ltd (PJD Group).
PJD Group purchased the Esk Caravan Park in 2013. It would be fair to say that it has not been smooth sailing for either party. PJD Group is operated by husband and wife team, Paul and Jackie Lawson.
Mr and Mrs Harmer seek:
1.    A declaration that they are homeowners as defined by the Manufactured Homes (Residential Parks) Act 2003 (Qld) (the Act) and are entitled to receive a written site agreement from PJD Group Pty Ltd in accordance with the Act;
2.    A declaration that PJD Group cannot impose a requirement upon Mr and Mrs Harmer that their manufactured home must comply as a Class 1a dwelling prior to entry into the site agreement;
3.    An order that amounts…

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: [2017] QCAT 179
Decision Date: 29 May 2017

CaseChat Overview and Summary

The Queensland Civil and Administrative Tribunal (QCAT) dealt with an application by Julie Ann Harmer and Robert George Harmer against PJD Group Pty Ltd, trading as Esk Caravan Park. The Harmers sought a declaration that they were homeowners within the meaning of the Manufactured Homes (Residential Parks) Act 2003 (Qld) and thus entitled to a written site agreement. Additionally, they sought to have it declared that PJD Group Pty Ltd could not require their manufactured home to be classified as a 1a dwelling. They also sought refunds of fees charged for visitor and electricity services and the dismissal of any proceedings PJD Group Pty Ltd had initiated to terminate their tenancy. The legal issues before the Tribunal were whether the Harmers were homeowners under the Act, the implications of such a status, and the enforceability of the fees charged and the termination proceedings.

The Tribunal found that the Harmers were indeed homeowners as defined by the Act. This conclusion was based on the fact that they had installed a manufactured home on the land, had a right to exclusive possession, and had paid fees to PJD Group Pty Ltd. The Tribunal held that PJD Group Pty Ltd was not entitled to impose additional requirements on the Harmers' manufactured home classification. Furthermore, the Tribunal ruled that the fees charged for visitor and electricity services were not applicable to homeowners and should be refunded. Lastly, the Tribunal dismissed the proceedings PJD Group Pty Ltd had initiated to terminate the Harmers' tenancy, finding them to be homeowners entitled to the protections of the Act.

The Tribunal's orders included a declaration that the Harmers were homeowners under the Act and were entitled to a written site agreement from PJD Group Pty Ltd. It also declared that PJD Group Pty Ltd could not require the Harmers to classify their manufactured home as a 1a dwelling. Additionally, the Tribunal ordered PJD Group Pty Ltd to refund any visitor and electricity service fees charged to the Harmers and to dismiss any proceedings seeking to terminate their tenancy. These orders were to be complied with by specific deadlines.

Orders

Orders of the court

1. The Tribunal declares that Julie Ann Harmer and Robert George Harmer are homeowners as defined by the Manufactured Homes (Residential Parks) Act 2003 (Qld) and are entitled to receive a written site agreement from PJD Group Pty Ltd, and order PJD Group Pty Ltd to provide the agreement giving effect to the Tribunal’s orders no later than 4:00pm on 15 June 2017.

2. The Tribunal declares that PJD Group Pty Ltd cannot impose a requirement upon Julie Ann Harmer and Robert George Harmer a requirement that their manufactured home be classed as a 1a dwelling in compliance with relevant building certification provisions.

3. Any amounts that Julia Ann Harmer and Robert George Harmer have been charged for visitor fees and electricity service fees be refunded to them by PJD Group Pty Ltd, no later than 4:00pm on 15 June 2017.

4. Any proceedings commenced by PJD Group Pty Ltd pursuant to the Residential Tenancies and Rooming Accommodation Act 2008 (Qld), seeking to terminate Julie Ann Harmer and Robert George Harmer’s tenancy be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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