Hewitson & Homans v Hometown Australia/Gateway Lifestyle
[2022] QCAT 74
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Hewitson & Homans v Hometown Australia/Gateway Lifestyle [2022] QCAT 74
PARTIES:
WILLIAM PAUL HEWITSON (applicant in OCL008-19)
RICHARD HOMANS
(applicant in OCL007-19)
v
HOMETOWN AUSTRALIA/GATEWAY LIFESTYLE (respondent)
APPLICATION NOS:
OCL008-19 and OCL007-19
MATTER TYPE:
Other civil dispute matters
DELIVERED ON:
8 February 2022
HEARD AT:
Brisbane
DECISION OF:
Member Sammon
ORDERS:
Each application is dismissed.
CATCHWORDS:
ADMINISTRATIVE LAW - JURISDICTION OF TRIBUNAL – statutory prerequisites for application to Tribunal under the Manufactured Homes (Residential Parks) Act 2003 (Qld) – application for reduction of rent due to reduction of facilities at residential park
Manufactured Homes (Residential Parks) Act 2003 (Qld), s 8, s 10, s 12, s 14, s 14A, s 72, part 17, division 1, subdivision 3, s 107, s 108, s 116, schedule 2
Kirk v Industrial Court (NSW) (2010) 239 CLR 531
APPEARANCES & REPRESENTATION:
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
Introduction
Each applicant, Mr Hewitson and Mr Homans, are residents of the Gateway Lifestyle residential park located at the Coombabah at the Gold Coast. The respondent, Hometown Australia/Gateway Lifestyle (Gateway Lifestyle) operates the residential park as a ‘park owner’ under the Manufactured Homes (Residential Parks) Act 2003 Qld (the Parks Act).
That Act regulates the operation of 'residential parks’ as that term is defined under that Act.[1] Each applicant in this case is a 'home owner' as that term is defined in the Act,[2] essentially to mean a person who owns a 'manufactured home'[3] in a residential park. A feature of manufactured homes in residential parks is that a 'home owner' owns their manufactured home whilst the park owner owns the land occupied by the home owner’s manufactured home. A home owner pays site rental to the park owner under a ‘site agreement’.[4]
[1]Section 12.
[2]Section 8.
[3]Defined in s 10, to mean a structure, other than a caravan or tent, that has the character of a dwelling house, is designed to be mobile and is not permanently attached to land.
[4]Defined in s 14.
Each applicant has applied to the Tribunal under s 72 of the Parks Act for an order reducing the site rent at the residential park on the basis that the amenity or standard of the park’s common areas and communal facilities has decreased substantially since the relevant site agreements were entered into, or a communal facility or service provided at the park when the agreement was entered into has been withdrawn.
On 29 April 2019, the Tribunal directed that each of the applications to the tribunal 'travel together', meaning that both matters would proceed in the Tribunal in tandem. The applications are relevantly identical. That explains why this decision is being made in respect of each application.
Statutory prerequisites for the Tribunal to hear and determine the applications under the Act
Section 72(2) provides that a home owner may 'subject to section 116' apply to the Tribunal for an order reducing the site rent if the Tribunal is satisfied that the relevant facilities have decreased substantially or have been withdrawn.
Section 116 is headed 'Requirements for application' and s 116(1) states that the section applies if a party to a 'residential park dispute’ may apply to the Tribunal under the Act for an order in relation to the dispute. The last part of s 116(1) is satisfied in this case, since s 72 provides that the applicants in this case may apply to the Tribunal for an order (for reduction of rent).
The meaning of a 'residential park dispute' is contained in s 14A of the Act.[5] The applicants’ dispute with Gateway Lifestyle in this case will fall within the following paragraph of s 14A(1):
(c) a dispute between the park owner and home owner under a site agreement about—
(i)the parties’ rights or obligations under the agreement or this Act; or
(ii)another matter provided for under this Act.
[5]The Dictionary to the Act (schedule 2) defines the term by reference to s 14A.
For present purposes, the significant operative part of s 116 is s 116(3) which relevantly provides that:
(3) A party to a residential park dispute (other than a dispute mentioned in section 14A(1)(b)) may apply to the tribunal only if—
(a)the dispute has been referred for mediation under section 108; and
(b)1 of the following applies— [subparagraphs (i)-(iv) list circumstances in which the mediation has not been successful in resolving the dispute.]
(added emphasis)
I pause there to make the following points of analysis about s 116(3) in the circumstances of these applications.
First, the exception to the application of s 116(3) if the dispute is a dispute mentioned in s 14A(1)(b) does not apply. That part of s 14A refers to a dispute between a seller and a park owner about the park owner’s failure or refusal to consent to the assignment of the seller’s interest in a site agreement to a buyer. That has no application on the facts of this case.
Second, the onus is on an applicant to ensure that the prerequisite for applying to the Tribunal under s 116(3) has been satisfied.
Third, apart from the language of s 116(3) making clear that the onus is on an applicant to have firstly referred a dispute to mediation under s 108, that onus is also clear from the language of s 108(1) itself which provides:
108 Referral of residential park dispute for mediation
(1) A party to a residential park dispute may apply to the registrar[6] to refer the dispute for mediation under this subdivision.
[6]Of the Tribunal.
In other words, it is a party to a dispute who may apply to the Registrar of the Tribunal to refer the dispute for mediation and not, for example, the responsibility of the Tribunal to refer the matter to mediation, until the appropriate application is made to the Registrar.
Section 108(2) contains prerequisites even for the need for a party to a residential park dispute, before applying to have the dispute referred for mediation under s 108(1); that is, that the party has attempted to resolve the dispute by negotiation under s 107 and the dispute has not been resolved. There is no need to consider the application of those provisions on the facts of these applications.
The rest of part 17, division 1, subdivision 3 on 'Mediation' sets out procedural provisions for the conduct of a mediation. It is not necessary to consider those provisions for the purposes of the current applications.
Fourth, s 116(2) provides that the obligation on a party to a residential park dispute to have first referred the dispute to mediation before applying to the Tribunal does not apply to an application authorised under an 'exempt provision’. Section 116(5) defines an ‘exempt provision’ to mean ss 38(1), 39(4), 52(3), 53(5), 55(2) or 94(4). Section 72 is not included in those provisions, and there is nothing in those provisions applicable to the dispute in the current applications.
The applications made to the Tribunal by Mr Hewitson and Mr Homans
The difficulty confronting each applicant is that they had not applied to have the disputes referred to the Registrar of the Tribunal for mediation before applying to the Tribunal for the orders they seek under s 72 of the Parks Act.
Each application was filed on the same day at the Tribunal’s Southport Registry using Tribunal form 30, a form specific to applications under the Parks Act. In answer to a question on the form whether each applicant had engaged an independent mediator to assist them to deal with their dispute, the applicant ticked the box marked 'No’. Each applicant seemed to have some knowledge about the Parks Act, because when asked on the form if they were alleging a contravention or failure to comply with a section of the Act, they specifically referred to s 72.
In the interests of natural justice, the Tribunal gave directions dated 10 January 2022 to the parties to these applications, under which each applicant was directed to provide a copy of any evidence that either applicant had applied to the Registrar of the Tribunal to refer the disputes to mediation under s 108 of the Parks Act.
The applicants filed submissions dated 18 January 2022, but did not provide any evidence that either dispute had been the subject of an application to the Tribunal Registrar for referral to mediation under s 108.
In their submissions, the applicants submitted that when their applications were made to the Tribunal in 2019, the (then) current version of the Parks Act was in effect from 10 November 2017, and the version of the Act current at that time contained no s 108 or s 116. That is not correct. The version of the Parks Act current as of January 2019 was the version dating from 31 October 2018. That version contains s 108 and s 116 in their current form as described in these reasons for decision. Each of those provisions was inserted into the Parks Act by s 53 of Act No 42 of 2017.
It is true that the reprint of the Act as of 10 November 2017 did not contain the now current s 108 or s 116. However, if the applicants had relied on that reprint when they made their applications to the Tribunal, they were working from an out of date reprint.
The statutory prerequisites in s 108 and s 116 are required to be complied with by an applicant before the Tribunal has the jurisdiction to hear and determine an application for an order under s 72.[7] Jurisdiction cannot be conferred on a court or tribunal even by the agreement of the parties, if the court or tribunal does not have jurisdiction under the legislation concerned.
[7]See generally the decision of the High Court in Kirk v Industrial Court (NSW) (2010) 239 CLR 531.
In their submissions, the applicants refer to attempts by the Tribunal to resolve these disputes by compulsory conference. However, those attempts were not successful, and for the Tribunal to now hear and determine the applications for orders under s 72, it is necessary for the Tribunal to have jurisdiction to do so. A compulsory conference convened after an application has been made to the Tribunal will not satisfy the statutory jurisdictional prerequisites for the Tribunal to hear and determine an application under s 72, that the dispute be referred to mediation before the application under s 72 is made to the Tribunal.
Since the applicants have not complied with s 108 and s 116, regrettably, the Tribunal does not have the jurisdiction to hear and determine their applications for orders under s 72 of the Parks Act, whatever the outcome might have been. The formal orders that I make will reflect that legal reality.
On the other hand, there does not appear to be a time limitation in s 72 of the Parks Act that would require a home owner to file an application in the Tribunal within a maximum period of time, provided that the statutory prerequisites in s 108 and s 116 have been complied with.
The application form filed by each of the applicants to the Tribunal records that the filing fee was waived in each case. There is therefore no basis for the payment of any filing fee to be refunded to either applicant, on the basis that the Tribunal does not have jurisdiction to hear and determine either application.