Harvest Investment No. 4 Pty Ltd v Hulett
[2011] QCAT 248
•3 June 2011
| CITATION: | Harvest Investment No. 4 Pty Ltd v Hulett [2011] QCAT 248 |
| PARTIES: | Harvest Investment No. 4 Pty Ltd trading as Nestle Inn Tourist Village |
| v | |
| Mr Gary Hulett |
| APPLICATION NUMBER: | OCL171-10 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | 2 June 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe, Member |
| DELIVERED ON: | 3 June 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Application dismissed. |
| CATCHWORDS: | MANUFACTURED HOMES – where resident exposed himself to other residents – whether a breach of site agreement – where notice to remedy breach issued in the wrong form – where application to terminate issued 3 days after notice to remedy breach issued – whether tribunal had power to terminate site agreement Manufactured Homes (Residential Parks) Act 2003, s 138(1)(a) |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Trent Ottawa, director of the applicant |
| RESPONDENT: | Mr John Hulett, Porter Hulett, Solicitors |
REASONS FOR DECISION
Gary Hulett has been a resident of the Nestle Inn Tourist Village since 2004. He concedes that, on 2 November 2010, he exposed himself in front of two Village employees who are also residents of the Village. The Village issued a notice to remedy breach that day on these grounds:
“In violation of Park Rules. Misappropriate behaviour including drunkenness and public indecency. This behaviour must stop immediately.”
On 5 November 2010, relying on the breach notice, Harvest filed an application to terminate Mr Hulett’s site agreement.
At the hearing, witnesses gave evidence about: the extent of Mr Hulett’s exposure; the effect that the incident had on the two witnesses; the context in which the exposure occurred and the timing of the exposure. It is not necessary to decide these matters or, therefore, to make findings of credit between the versions given.
Mr Ottawa, for Harvest, described the incident as unacceptable and incapable of remedy. He told the tribunal that it would set a “terrible precedent” if the Village was not able to ensure the safety and quiet enjoyment of other residents of the Village by terminating Mr Hulett’s site agreement.
Mr John Hulett’s argued that the behaviour occurred between male friends in the context of friendly banter, and did not have the necessary character to constitute a breach of the residents’ quiet enjoyment. While I accept that there may be times when exposure of one’s genitals may not be offensive as such, I do not consider that to be an excuse for Mr Hulett’s behaviour. In this context, however described, it was unnecessary, uncalled for and inappropriate.
That is a different question from whether it is behaviour that entitles Harvest to terminate the site agreement. Harvest relies upon section 38(1)(a) of the Manufactured Homes (Residential Parks) Act 2003 (MH Act) as giving the tribunal power to terminate Mr Hulett’s site agreement. That section allows me to terminate a site agreement if the home owner has contravened a term of the site agreement and has failed to remedy the contravention after being given by the park owner a notice, in the approved form, requiring the home owner to remedy the contravention within 28 days after the notice is given.
Mr John Hulett pointed out that the notice was not in the approved Form 6 but in Form 11 pursuant to the Residential Tenancies and Rooming Accommodation Act 2008 (RT Act). He did not take issue with that fact and there is little difference between the two forms. I do note, however, that Form 6 requires the park owner to specify:
a) What condition of the agreement has been breached.
b) By when the problem must be fixed.
Harvest’s notice to Mr Hulett did not state which condition of the site agreement was breached.
At the hearing, Mr Ottawa relied on a breach of paragraph 4.1.1(d) of the site agreement as the basis for the breach notice. That paragraph states:
[A homeowner has the following basic responsibilities:] not to interfere with the reasonable peace, comfort or privacy of other park residents or allow guests or tenants to do so.
[10] Mr John Hulett argued that paragraph 4.1.1(d) of the site agreement does not deal with the type of behaviour alleged. I do not accept that argument. If a park resident is offended by another resident’s behaviour, and it affects the first resident’s enjoyment of his home, then it can reasonably be said that the behaviour is a breach of paragraph 4.1.1(d). There is no other paragraph of the site agreement that can respond to behaviour of this type.
[11] Mr John Hulett further argued that Harvest had not demonstrated a breach of this paragraph. Two witnesses, both of whom are residents of the Village gave evidence that they were horrified by the incident and that it affected their work and the way that they went about their business in the Village for some time afterwards. While there was no medical evidence to support their contentions, and some contrary evidence about the behaviour of those gentlemen shortly after the incident, Mr Hulett acknowledged that they did “stay away” from him after the incident.
[12] Importantly, however, s 138(1)(a) of the MH Act does not give the tribunal a power to terminate a site agreement simply because there has been a breach of the site agreement. It is also necessary[1] to demonstrate that Mr Hulett has failed to remedy the breach within 28 days after the notice was given.
[1] Section 138(1)(a)(ii).
[13] Mr Hulett was never given 28 days in which to remedy his breach. The notice to remedy breach required Mr Hulett to remedy the breach by 2 November 2010, the date that it was issued. The application was filed on 5 November 2010, only three days after the notice to remedy breach was issued. At the hearing, there was no evidence that Mr Hulett had failed to remedy the breach the subject of the notice dated 2 November 2010. There was no evidence of further public drunkenness; there was no evidence of further indecency.
[14] Mr Ottawa, in his cross-examination of Mr Hewlett, referred to numerous breach notices throughout the period of Mr Hulett’s residence, including incidents that occurred after the breach notice was issued.
[15] There was some evidence of a previous incident that involved indecency. Mr Hulett denied the incident. The details of the incident were not put before me, it did not form part of the reasons for the notice issued on 2 November 2010 and it is not part of the application filed on 5 November 2010. I cannot have regard to that incident in making my decision. For the same reasons, I will not have regard to other incidents that preceded the notice.
[16] As Harvest has not demonstrated how the later incidents relate to either drunkenness or public indecency, and I do not have copies of the breach notices as part of the evidence of this hearing, I cannot see how they are relevant to my decision.
[17] There was some debate at the hearing as to whether the special conditions formed part of Mr Hulett’s site agreement. The parties did not address me on this point. Mr Hulett was not sure whether Annexure A was part of the site agreement. Mr Ottawa referred me to page 11 of the site agreement which refers specifically to Annexure A. Annexure A is not signed or initialled by any party to the site agreement and the home owner’s checklist on page 4 was not completed. Section 22(2) of the MH Act provides that a variation of a special term is void unless it is written and signed by the parties to the agreement. Adopting the same test, I find that, in the absence of a signed copy of Annexure A, it did not form part of the site agreement.
[18] It follows, then, that I do not have to consider the effect of ST19. Mr Ottawa did not argue its application before me although a copy of that paragraph was provided to the tribunal on 22 February 2011 as an “extract…regarding behaviour.”
[19] I am mindful of Mr Ottawa’s argument that Mr Hulett’s behaviour was incapable of being remedied and that Mr Hulett did not even offer an apology to the witnesses. While it is true that this is not a breach in the same way as, say, a failure to pay rent, the “remedy” in this case is as Mr John Hulett has pointed out – refraining from the offensive behaviour. As I have already pointed out, s 138(1)(a) simply does not provide for termination of a site agreement without notice.
[20] Harvests’ application must be dismissed. In doing so, I am not intending to create a precedent that “allows” residents to engage in this sort of behaviour without consequences. As Mr Ottawa pointed out, Mr Hulett must be responsible for his actions. Mr Hulett has received fair warning. If, as Mr John Hulett asserts, Mr Hulett is subject to a campaign to remove him from the Village, Mr Hulett would do well to pay close attention to the terms of his site agreement and the provisions of s 138(1) generally.
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