Homans v Hammond Village Operations Pty Ltd - [2023] QCAT 38

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Homans & Ors v Hammond Village Operations Pty Ltd [2023] QCAT 38

PARTIES:

Richard Homans, Margaret Napper,
Theo Devlin, Melinda Walsh, Norman Fair,
Russ Wilson, Rosemarie Hicks,
Ron Peters, Barbara Hunter, Beryl Knapp,
Albert Morgan, Dragica Stokic,
Lilian Harrison, Diane Edwards,
Emily Richard, Alan Rutter,
Andrew Saussey, David Hill, Iris Maddren,
Trudy Valve, Norma Leo, Alan Cook,
Peter Campion, Graham PaStoors,
Julie Pratt, Denise Summers, Ray Weal,
Danny Kikic, Patricia Dowling,
Maeve McCabe, Darryl Smith, Brian Pollock,
Doreen Rowlands, David Walker,
Allan Lewis, Gwen Kooymans,
Margaret Vains, Arthur Harvey,
Lilian Beatty, Terry Docker, Jean Lewis,
Rae Devlin, Marge Clarke,
Wendy Mountstephen, George McIntyre,
Tom Bunyan, Diane Dawson,
Pat Moran-Dwyer, Lance Callander,
James Stannard, Roy Morris, Noel McIsaac,
Trevor Waterman, Aranka Simon, LYN GELLATELY, Glenda Botica, Francine Aitkinson, Raymond Davidson, Paul Dinniss, Sue Griffin, Meureen Rodgers, Peter Jenkins,
Ian Willett, Sandra Bonney, Graeme Morris,
Jane A MacDonald, Fred Harris, Lea Catley,
Barry Lachmund, Sandra Litt,
Amanda Clements, Diane Waters,
Joanne Bowen, Lorraine McCloughan, Christine Black, Michael Field,
Marita Thompson, Margaret Williams,
William Hewitson, Ross Burke, John Morgan,
Lynda McColl, Barbara Laskas,
Susan Lubeck, Barry Bingham,
Dulcie Hallam, Pamela Harrison,
Janelle Andrews, Judy Law, Elizabeth New,
Ray Coutts, Pam Henry, Brian Mulquiney,
Noel Crabbe, Glenda Welch, Donna Simes,
Mary Jones, Valerie Cook, Anne Pragnell,
Cynthia Wort, William Strahan,
Hank Wichers

(applicants)

v

hammond village operations pty ltd

(respondent)

APPLICATION NO/S:

OCL050-20

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

23 January 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Deane

ORDERS:

1.     The Tribunal record is amended to reflect that Graham Pastoors is an applicant.

2.     The Tribunal record is amended to reflect that Lyn Gellately remains an applicant.

3.     John Morgan and Lynda McColl are removed as applicants.

4.     The increase of site rent set out in the Notices of Increase in Site Rent dated 27 November 2019 relying upon the market review of site rent is set aside.

5.     Hammond Village Operations Pty Ltd must refund to Richard Homans, Fred Harris, Lance Callander, Norma Leo, Beryl Knapp and such other Applicants who received Notices of Increase in Site Rent dated 27 November 2019 relying upon the market review of site rent any overpayment of the site rent since when the increased site rent has been paid.

6.     The increase of site rent set out in the Notices of Increase in Site Rent dated 27 November 2019 relying upon a CPI increase in accordance with the formulae in their individual site agreement is confirmed.

CATCHWORDS:

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – CONTROL OF PARTICULAR MATTERS – RESIDENTIAL – CARAVAN PARKS AND MOVEABLE DWELLINGS – whether notices of site rent increases should be set aside – whether park owner has complied with legislative market review requirements – whether CPI increases should be consistent across site agreements

Acts Interpretation Act 1954 (Qld), s 14A, s 14B, s 32C

Housing Legislation (Building Better Futures) Amendment Act 2017 (Qld), s 33
Manufactured Homes (Residential Parks) Act 2003 (Qld), s 4, s 8, s 10, s 11, s 12, s 13, s 14, s 17, s 19, s 69, s 69A, s 69B, s 69C, s 69D, s 69E, s 70, s 74A, s 96, s 100, s 101, s 102, s 107, s 108, s 115, s 116, Schedule 2
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 38, s 42

Queensland Civil and Administrative TribunalRegulation 2019 (Qld), s 5, s 8

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

Mr Homans is the lead Applicant in this matter. Mr Homans and the other Applicants claim to be homeowners[1] in a residential park[2] governed by the Manufactured Homes (Residential Parks) Act 2003 (Qld) (the Act). Homeowners own manufactured homes,[3] which are positioned on sites[4] in the residential park. The park owner[5] owns the land, common areas and communal facilities built on the land. There are 247 sites at this residential park. Homeowners enter into individual site agreements with the park owner[6] in respect of the land on which their home is situated and their use of the common areas and communal facilities. The site agreement provides for the homeowner to pay site rent and for how the rent is to be reviewed. The Act also provides for how rent is to be varied.[7]
[1]Manufactured Homes (Residential Parks) Act 2003 (Qld), s 8 (the Act).
[2]Ibid, s 12.
[3]Ibid, s 10.
[4]Ibid, s 13.
[5]Ibid, s 11.
[6]Ibid, s 14.
[7]Ibid, Part 11, ss 68 – 74A.
Applicants other than Mr Homans were formally joined as Applicants.[8] Since then Sheila Aitken and Lyn Gullifer were formally removed as Applicants.[9] The spelling of some of the Applicants’ names have been amended at the request of Mr Homans. On the basis of my review of the documents filed I amend the Tribunal record further from ‘Graham Patoors’ to ‘Graham Pastoors’ and find that Lyn Gellately remains an Applicant.[10] Mr Homans advised the Tribunal that Glenda Botica withdrew from the proceedings.[11] No formal withdrawal has been received by the Tribunal and therefore Ms Botica remains an applicant.
[8]Direction 1 made 9 September 2020.
[9]Direction 1 made 20 November 2020.
[10]Not included in header to Directions made 16 July 2021.
[11]5 October 2020.
The Applicants seek to set aside Notices of Increase in Site Rent dated 27 November 2019 (Notices). Some of the Notices rely upon a market review of site rent[12] and others CPI. All Notices seek to increase the site rent from 1 January 2020. Examples of Notices are in evidence before me but apart from the examples there is little specific evidence of which type of Notice was provided to each of the Applicants.
[12]The Act, Schedule 2, definition ‘market review of site rent’.
Some copies of site agreements have been filed by the Applicants and others by the park owner. Some of the site agreements filed appear incomplete because pages appear to be missing[13] and one has not been received.[14] I am unable to make specific findings in relation to all or indeed most Applicants.
[13]Sites 58, 182 and 222.
[14]Site 62.
The Applicants bear the onus of satisfying me of their contentions.
The Applicants disputed the site rent increase.[15] No agreement was able to be reached through negotiation[16] or mediation.[17] The Applicants applied to the Tribunal[18] and seek orders setting aside the increase[19] and for a refund of the increase paid since 1 January 2020 and the difference in site rent increases since. They say that the park owner failed to comply with the Act and the Applicants’ site agreements regarding the rent increases.
[15]The Act, s 70.
[16]Ibid, s 107.
[17]Ibid, s 108.
[18]Ibid, s 115, s 116.
[19]Ibid, s 70(4).
It is not controversial that the park has been in operation for many years and has been owned by different park owners over the years. Several different site agreements are in place. Some of the site agreements provide for market review in certain years with CPI increases in other years and others only provide for CPI increases. There are a number of CPI increase formulae in different site agreements.
The Respondent seeks orders that the application be dismissed and for orders for the immediate payment of ‘delinquent site rents’.[20] There is no evidence before me that the Respondent has paid the relevant filing fee and therefore, I am not satisfied that the ‘counter-application’ is validly before the Tribunal.[21] I regard the document a Response only.
[20]Response and/or counter-application filed 12 October 2020 (Response).
[21]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 38(2) (QCAT Act); Queensland Civil and Administrative TribunalRegulation 2019 (Qld), s 5 and s 8 (QCAT Regulation).
The parties have filed various statements of evidence and submissions. This matter was directed to be determined on the papers filed.[22]
[22]Directions 16 July 2021.
The delay in finalising this matter is regrettable and relates at least in part to resourcing issues. The delay also relates to my attempts to reconcile the submissions with incomplete evidence as referred to earlier in these reasons.

Who is the proper respondent?

The Applicants originally nominated ‘Redgum Coombabah (formerly Gateway Lifestyle)/AG 11 Pty Ltd trustee for Hammond Village Trust’ as respondent.[23]
[23]Application filed 2 June 2020.
The Notices state that AG No 11 Pty Limited ACN 165860373 as trustee for the Hammond Village Trust is the park owner.
At a directions hearing[24] Hammond Village Operations Pty Ltd was named as the proper respondent.
[24]12 March 2021.
A publicly available online Australian Securities & Investment Commission (ASIC) Business Name Details search shows that as from 16 April 2020:
(a)the business operated under the name Red Gum Coombabah has its principal place of business at 22-38 Handsford Road, Coombabah; and
(b)the business name is owned by Hammond Village Operations Pty Limited.
The undisputed evidence is that the residential park is now called Red Gum Coombabah and is located at 22 Handsford Road, Coombabah.
Following the directions hearing at which the name of the respondent was amended, the Applicants did not file any evidence such as certificates of title for the residential park, which would have established that the registered owner of the land on which the residential park is located is or is not the currently named respondent.
Attached to the site agreements for sites 156 and 234 are letters dated 25 September 2017, which seek to clarify that the proper party to site agreements is Hammond Village Operations Pty Limited. The site agreement for site 206, which was entered into in May 2019, names Hammond Village Operations Pty Limited as park owner. Unsurprisingly, earlier site agreements identify different entities as park owner.
In the absence of other evidence from either party, I accept that Hammond Village Operations Pty Limited is the park owner (the Park Owner).

Should certain Applicants be removed?

I find that John Morgan and Lynda McColl ought to be removed as Applicants.
The Park Owner contends that Notices were not given in respect of sites 204 and 206.[25] The Applicants do not address these contentions. The homeowners of those sites have not given any statements of evidence to establish they received a Notice. I have reviewed their site agreements, which were entered into in 2019. In the absence of other contrary evidence, I accept that they did not receive a Notice, which is challenged by these proceedings. I am not satisfied that their interests are affected by the proceedings, nor am I satisfied that they are proper or necessary parties to the proceedings.[26]
[25]Response, [41], [108].
[26]QCAT Act, s 42(2).
The Park Owner contends that Melinda Walsh ought to be removed as an applicant as she is not a homeowner but rather a potential beneficiary of a deceased estate.[27] The Park Owner and Ms Walsh have not provided evidence in relation to this contention. The Applicants do not address this contention. The definition of homeowner[28]includes beneficiaries of deceased individuals who owned a manufactured home or another successor in title. I am not satisfied that Ms Walsh ought to be removed as an applicant.
[27]Response, [41].
[28]The Act, s 8.

Should the market rent review increase be set aside?

I find that the market rent review increase should be set aside.
The Act expressly prohibits the increase of site rent under a site agreement unless the park owner complies with sections 69A to 69E of the Act.[29]
[29]The Act, s 69(3).
Some examples of a Notice based on a market review are in evidence before me.[30]
[30]Application for hearing filed 29 July 2020, attachment – site 175; Statement of Jamie Scott Brown filed 5 May 2021, annexure JSB3 – site 128.
Other than Mr Homans, no applicant contends they received a Notice based on market review but ought to have received a CPI based Notice.
I am satisfied that the site agreement for site 175 in evidence before me provided for a market review on 1 September 2019. Fred Harris is the applicant homeowner of site 175. I am also satisfied that the site agreement for site 128 in evidence before me provided for a market review on 1 September 2019. Lance Callander is the applicant homeowner of site 128.
The homeowner of site 53, Norma Leo, provided a statement of evidence that she had received a Notice based on a market review.[31] I am satisfied that the site agreement for site 53 in evidence before me provided for a market review on 1 September 2019.
[31]Statement of Norma Leo filed 1 April 2021.
The owner of site 36 provided a statement of evidence. Although it could be clearer, it seems to suggest she had received a Notice based on a market review. A copy of any such notice is not before me.[32] Mrs Knapp does not contend that her site agreement did not provide for market review on 1 September 2019.
[32]Statement of Beryl Knapp filed 1 April 2021.

Is the market rent review increase invalid due to lack of consultation?

I find that the market rent review increase was invalid as the Park Owner failed to consult with or arrange for a registered valuer to consult with the home owners committee (the Committee) for the park contrary to the mandatory requirements of section 69D of the Act.
Section 69D of the Act provides:
(1) This section applies if—
(a)the site agreement for an eligible site provides for an increase in the site rent on the basis of a market review of site rent; and
(b)the park owner proposes to increase the site rent on that basis.
(2) At least 63 days before the next general increase day for the site, the park owner must consult with, or arrange for a registered valuer to consult with, the interested entities for preparing a written valuation for the market review of site rent (a market valuation).
(3) In this section—
interested entities means—
(a)the home owners committee for the residential park; or
(b)if no home owners committee has been established for the park, for an increase in site rent intended to apply to—
(i) fewer than 9 sites—the home owners for at least 2 of the sites; or
(ii) 9 or more sites—the home owners for the number of the sites at least equal to 25% of the number of the sites.
Section 100 of the Act provides:
(1)   The home owners for a residential park may establish, by election conducted among themselves, a home owners committee.
(2)   Only 1 home owners committee may be established for a residential park.
(3)   The park owner for a residential park must not restrict the home owners for the park from establishing a home owners committee.
Maximum penalty—20 penalty units.
(4)   A member of the committee—
(a)holds office for not more than 1 year, but may be re-elected; and
(b)may be removed, at any time, by special resolution at a meeting of the home owners.
(5) The committee may, subject to any constitution adopted under section 101 for the committee—
(a)decide its own procedures; and
(b)form subcommittees and decide each subcommittee’s procedures.
(6)   The park owner may, if invited by the committee, attend a meeting of the committee.
The Committee’s function is to deal with the park owner on behalf of the homeowners about the day to day running of the park and any complaint or proposal about the operation of the park raised by the homeowners.[33]
[33]The Act, s 102
The undisputed evidence is that the valuer relied upon the Park Owner to comply with the consultation obligation and did not separately seek to comply with the consultation obligation.
The Park Owner says that it invited all residents, including the members of the Committee, to a morning tea held on 16 October 2019 and one of the agenda items was to discuss the forthcoming market review. There is evidence of the invitation to this event.[34] It shows an item for discussion is the ‘3 year market review’.
[34]Application for hearing, attachment 5; Response attachment RG01.
The Park Owner says, and the Applicants do not dispute, that approximately 120 residents, including some members of the Committee, attended the morning tea. It says that it invited all residents and not just the Committee because not all residents are ‘aligned’ with the Committee. On this occasion all residents were invited to make submissions to the valuer. The Park Owner received four written submissions, which were provided to the valuer to consider in forming his opinion.[35] No written submissions were received from a member of the Committee’s executive or on behalf of the Committee.
[35]Response, attachment RG03; Statement of Barry Stanaway, BS01.
The Park Owner says that it not only consulted with the Committee, it consulted with other homeowners. The Applicants do not dispute that homeowners were invited to make submissions in the way contended for by the Park Owner, however, they contend that it was not a consultation with the Committee. There was no specific invitation to the Committee to meet with the Park Owner nor to meet with the valuer to discuss this market review.
The Applicants contend that there are 7 members of the Committee and that they did not make any submissions because they were expecting to be separately consulted.
The Act does not provide a definition of ‘consult’ or set out in any prescriptive way how that is to be undertaken.
The objects of the Act are set out in section 4, which provides:
(1)   The main object of this Act is to regulate, and promote fair trading practices in, the operation of residential parks—
(a)to protect home owners from unfair business practices; and
(b)to enable home owners, and prospective home owners, to make informed choices by being fully aware of their rights and responsibilities in their relationship with park owners.
(2)   The main object is achieved by—
(a)declaring particular rights and obligations of the park owner, and home owners, for a residential park; and
(b)facilitating the disclosure of information about a residential park, and this Act, to a prospective home owner for a site; and
(c)regulating—
(i)      the making, content, assignment and ending of a site agreement; and
(ii)      the sale of an abandoned manufactured home positioned on a site in a residential park; and
(iii)     the variation of site rent; and
(d)facilitating participation by home owners for a residential park in the affairs of the park; and
(e)providing ways of resolving a residential park dispute.
(3)   The following are also important objects of this Act—
(a)encouraging the continued growth and viability of the residential park industry in the State;
(b)providing a clear regulatory framework to ensure certainty for the residential park industry in planning for future expansion.
The ordinary meaning of ‘consult’ is to seek information or advice. There is nothing in the objects which requires a different interpretation.
The Park Owner says that it went further than it was required to and that it essentially complied with section 69D by consulting with the Committee by consulting with homeowners of at least 25% of the sites, including at least some of the Committee.[36]
[36]The Act, s 69D(3)(ii).

Consulting with homeowners of at least 25% of the sites complies with the consultation obligation only if there is no homeowners’ committee. There is no dispute that a homeowners’ committee had been established. The Park Owner was required to consult with the Committee or arrange for a registered valuer to consult with the Committee because the Committee is the relevant interested entity. It is a mandatory obligation. It was open to the Park Owner to consult with homeowners more broadly but it was required to ensure that it or the valuer consulted with the Committee.
There is evidence before me that some members of the Committee did attend the meeting on 16 October 2019. I accept the evidence that there was some discussion about the market review and that homeowners were invited at the meeting to provide information or advice, which was to be given to the valuer in conducting the market review.
There is no evidence before me, upon which I could find, that the invitation and the consultation on 16 October 2019 made it clear that the members of the Committee were invited both in their capacity as homeowners and in their capacity as Committee members. There is no evidence before me as to any quorum or other Committee meeting requirements and therefore I am not satisfied that the 16 October 2019 meeting met any such requirements. A copy of any constitution adopted[37] was not in evidence before me.
[37]Ibid, s101.
To the extent that the meeting sought information or advice from homeowners, including from some members of the Committee, I am not satisfied that it constituted consultation with the Committee, which is a separate entity to the individuals elected to it.
I find that the Park Owner did not comply with section 69D of the Act therefore the site rent can not be increased in reliance upon the market review.[38]
[38]Ibid, s 69(3).
In view of my findings above it is not necessary to make findings on other submissions as to the market review.
However, if I am wrong about the consultation issue, I have considered other bases upon which the Applicants contend that the market rent review increase is invalid.

Is the market rent review increase invalid because presenting the Market Review Notice with a Goodwill Letter was contrary to s74A or s 96 of the Act?

I am not satisfied that presenting the Market Review Notice with a Goodwill Letter was contrary to section 74A or section 96 of the Act and therefore the market rent review increase was not invalid on this basis.
The Applicants say that the market review is invalid because the Park Owner provided a copy of the Valuer’s market assessment with the Notice and provided offers to accept a lower rent on certain terms (Goodwill Letters).
The Goodwill Letter required the offer to be accepted by 20 December 2019, a period of 23 days from receipt. The Applicants say that presenting the Notice and the Goodwill Letter in this way was an act of intimidation and coercion as it did not offer any opportunity for discussion or negotiation.
Section 74A of the Act provides:
The park owner under a site agreement must not threaten, intimidate or coerce, or attempt to threaten, intimidate or coerce, the home owner to –
(a) agree to an increase in the site rent; or
(b) refrain from seeking a review, under this part, of the site rent.
Maximum penalty – 200 penalty units.
Section 96 of the Act relevantly provides:
The park owner for a residential park for which site agreements are in force must not engage in harassment or unconscionable conduct in the operation of the park….
Examples of harassment –
….
·engaging in conduct that would make a person feel unwillingly compelled to comply with the park owner’s request or demand
….
Maximum penalty – 200 penalty units.
While there is some limited evidence that some homeowners agreed to accept the offer in the Goodwill Letter ‘unwillingly’ in my view it is necessary to consider whether objectively the Goodwill Letter contravened the provisions.
The Goodwill Letter was a commercial offer to compromise the Park Owner’s rights to apply the market assessment in return for a compromise of the homeowner’s rights to challenge the market assessment. Parties to contracts regularly make offers to forego some of their rights in the hope of reaching an agreed outcome in a timely manner and to save the costs, opportunity costs, uncertainty and stress of participating in dispute proceedings in tribunals or courts.
Whilst the Goodwill Letter did not expressly invite negotiation it is always open to a party to a contract to seek to negotiate an acceptable outcome when presented with an offer.
I am not satisfied that the Park Owner breached section 74A or 96 of the Act.

Is the market rent review increase invalid because the Valuation report should not be accepted?

I am not satisfied that the Valuation report should not be accepted.
The Applicants dispute the valuation. They say that the valuation assumes there is an operational bowls green. They say that it is and has been unusable due to lack of maintenance by the Park Owner since 1 August 2019, in breach of the site agreements and that they should be entitled to a site rent reduction of $10 per week.
The Applicants have not produced any expert evidence to challenge the valuation. The Applicants did not seek an oral hearing of this matter at which they could have sought the valuer to attend and be questioned.
The Applicants contend that the valuer should have taken into account the loss or reduction of other communal facilities, the failure to maintain other areas and the reduction of park staff hours.
The Applicants contend that the neighbouring park, Living Gems, which has a rent of $181.38 or only $6.38 more than the market rent as determined by the valuer, is far superior to their park. They say that had the Committee had the opportunity to consult with the Valuer differences would have been drawn to the Valuer’s attention. The Valuer’s report expressly acknowledges residents’ concerns in relation to the standard and condition of the community facilities in comparison to other parks.[39] The homeowner submissions to the Valuer before me[40]raised many of the issues the Applicants say they wished to raise. The Valuer confirmed he carried out a full inspection of the property on 22 November 2019.[41] He assessed the property as having ‘fair to average presentation with sections of the park showing the overall age of the complex’.[42] I am satisfied that the Valuer took such matters into account in arriving at his professional opinion.
[39]Response, attachment RG04, section 11.
[40]Response, attachment RG03.
[41]Response, attachment RG04, section 11.
[42]Response, attachment RG04, section 7, p8.
The Applicants submit that the assessed market rent at $175/week coincides with the highest rent imposed on incoming homeowners during 2019. The Valuer’s report notes that market rent is defined by the International Assets Valuation Standards Committee (IAVSC) as:[43]
The estimated amount for which an interest in real property would be leased on the valuation date between a willing lessor and a willing lessee on appropriate lease terms in an arm’s length transaction, after proper marketing and where the parties had each acted knowledgeably, prudently and without compulsion.
[43]Ibid, section 5.
Evidence of the amount achieved in the market is persuasive evidence of market rent in accordance with the IAVSC definition.
The Applicants raise various other matters including that the assessment date is stated as 1 January 2020 when that is a public holiday, typographical errors as to the address of the park, references to it being prepared for the Tribunal and refers to various entities which has created confusion.
I observe that a valuation is the valuer’s opinion as at a stated date, in this case 1 January 2020, the nominated general increase day, and commonly the preparatory work is undertaken and the report written prior to the stated date. Such matters do not detract from the valuer’s stated opinion. It is unfortunate that the report erroneously describes the address on the front page and the header of each page[44] but the report clearly describes the location of the residential park at section 6 of the report. The Applicants refer to loss of or reduction of communal facilities over the years and contend that such matters support a reduction in rent. The valuation is of the park as at the date of assessment, any loss of or reduction of communal facilities is incorporated into the market assessment.
[44]I observe that a header is usually populated once but appears on all pages designated to have a header. It is not unusual that an error in the header would appear on multiple pages.
The only evidence of valuation before the Tribunal is the market assessment. Although it indicates it was prepared for the Tribunal that is merely a notation that in the event there was a dispute that the Park Owner intended to rely upon it in Tribunal proceedings and the Valuer had prepared a report which could be submitted to the Tribunal, if necessary. It was not authorised or paid for by the Tribunal. The material before me refers to previous disputes between homeowners and the park owner of this residential park. The possibility of a dispute was clearly, and in my view not unreasonably, within the parties’ contemplation.
If it was not for the failure to consult with the Committee as required by the Act I would accept the Valuer’s evidence of market rent.

Is the market rent review increase invalid because the Park Owner did not comply with site agreements by nominating the general increase day as 1 January 2020 instead of specifying the review date as 1 September 2019 in breach of section 17(f) of the Act?

I am not satisfied that the market review increase is invalid because the Park Owner nominated the general increase day as 1 January 2020. I am not satisfied that such a nomination is in breach of section 17(f) of Act.
The Applicants say that:
(a)the historical general increase day and for the tri-annual market review in site agreements for the residential park is 1 September;
(b)in 2017 no increase was implemented on 1 September and was unilaterally deferred by the Park Owner to 1 January 2018;
(c)since then the Park Owner has specified 1 January as the general increase day and for the tri-annual market review in new site agreements.
The Applicants contend that the Park Owner specifying that the general increase day as 1 January is contrary to many of the site agreements and therefore contrary to section 17(f) of the Act. The site agreements in evidence before me variously provide for review on 1 September, 1 July and 1 January.
Section 17 of the Act provides:
The park owner for a residential park has the following responsibilities in relation to a home owner—
(a)to take reasonable steps to ensure the home owner or the home owner’s tenant—
(i) always has access to the home owner’s site in the park; and
(ii) has reasonable access to the common areas;
(b)to maintain the common areas and communal facilities in a reasonable state of cleanliness and repair, and fit for use by the home owner or the home owner’s tenant;
(c)to ensure the times the park owner or park manager is available to be contacted by the home owner or the home owner’s tenant are reasonable, having regard to all the circumstances, including the utilities supplied by the park owner to the site;
(d)to the extent it is within the park owner’s control, to ensure the continuity of supply of a utility to the park and the site;
(e)to comply with the park owner’s obligations under section 104;
(f)otherwise, to comply with the site agreement for the site and the park rules.
Note—
The responsibilities mentioned in this section are taken to be included as terms of a site agreement under section 19.
The Act relevantly provides that the terms of a site agreement include the park owner’s responsibilities under section 17[45] and other duties imposed on, or entitlements given to, the park owner or home owner under the Act.[46]
[45]The Act, s 19(b).
[46]Ibid, s 19(e).
Housing Legislation (Building Better Futures) Amendment Act 2017 (Qld) amended the Act, relevantly by replacing section 69 of the Act with the current ss 69 – 69E.[47] The Explanatory Note to the Bill[48] states that the object of the amendments to the Act was to increase transparency in the relationships between park owners and homeowners and strengthen consumer protections.[49] It accepts that the amendments will apply to existing site agreements as well as those entered into after the amendments.
[47]Housing Legislation (Building Better Futures) Amendment Act 2017 (Qld), s 33. Section 33 commenced on 31 October 2018 as fixed by proclamation, 2018 SL No 155, Proclamation—Housing Legislation (Building Better Futures) Amendment Act 2017 (commencing certain provisions).
[48]Acts Interpretation Act 1954 (Qld), s 14B.
[49]Housing Legislation (Building Better Futures) Amendment Bill 2017 Explanatory Notes, p 2.
The site agreements must be interpreted together with the Act.
The Act contemplates that a site agreement may provide for more than one basis for working out the amount of an increase in the site rent and provides that the park owner must not use more than one basis under a site agreement at one time.[50] It provides an example that site rent under a site agreement can not be increased by CPI and market review at the same time.
[50]The Act, s 69B.
Section 69C provides:
(1) The park owner must nominate the same day (the general increase day) when the site rent payable under the site agreements for all eligible sites in the residential park will be increased on the same basis (the relevant basis).
(2) A site is an eligible site for which the general increase day may be nominated if, under the terms of the site agreement for the site, the site rent may be increased on the relevant basis on or before the general increase day.
(3) Subsection (4) applies if the general increase day is nominated under subsection (1) for an eligible site and a general increase notice stating the general increase day (the stated increase day) is given to the home owner for the site under section 69E.
(4) The next general increase day that may be nominated under subsection (1) for any eligible site in the residential park must be at least 1 year after the stated increase day.
The obligations and entitlements in section 69C are taken to be terms of the site agreements.[51]
[51]Ibid, s 19(e).
Statutory interpretation requires the Tribunal to identify the objective intention of the legislature. In the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation.[52] There is nothing in the Explanatory Notes, which requires the inserted provisions to be interpreted other than in accordance with the ordinary meaning of the provisions.[53]
[52]Acts Interpretation Act 1954 (Qld), s 14A.
[53]Ibid, s 14B.
The Applicants say the Park Owner cannot rely upon section 69C because some Notices relied upon market review and others CPI so they are not the same relevant basis.
There is nothing in section 69C of the Act nor the Explanatory Notes to the Bill, which inserted section 69C into the Act, which clearly limits what may be a relevant basis agreed in a site agreement.
Section 32C of the Acts Interpretation Act 1954 (Qld) provides:
In an Act—
(a)words in the singular include the plural; and
(b)words in the plural include the singular.
Section 69C permits the park owner to nominate the general increase day provided that the site agreement for each eligible site[54] provides that the rent may be increased on the relevant basis on or before the nominated day.
[54]The Act, s 69C(2).
The park owner nominated 1 January 2020. Applying the ordinary meaning of the provision and having regard to the objects of the Act, I find that the Park Owner may nominate 1 January 2020 for a site with a site agreement, which allows for a market review (the relevant basis) on 1 September 2019 or any day prior 1 January 2020 or 1 January 2020. The Park Owner must nominate 1 January 2020 for all such eligible sites.
The evidence before me is that the previous general increase day on and from 1 January 2018 was 1 January and therefore not less than one year before so that the nomination does not contravene section 69C(4) of the Act nor is it a breach of a site agreement, which allows for a market review (the relevant basis), which nominates a different review date, which is prior to 1 January 2020.
Many of the site agreements in evidence before me provide for an increase on the basis of market review in certain years and on the basis of a CPI formula. Not all site agreements in evidence were due for their market review on or before 1 January 2020. There is insufficient evidence before me to make findings that each Applicant who received a Notice based on market review had a site agreement which allowed for market review (the relevant basis) on a date on or before 1 January 2020.

Is Mr Homans’ market rent review notice invalid because he should have received a CPI increase notice?

I am not satisfied that Mr Homans’ market rent review notice was invalid because on the limited evidence before me a market review under his site agreement was due on 1 September 2019.
Mr Homans raises an issue with the timing of market reviews under his site agreement.[55] The Park Owner does not address this contention.
[55]Submissions filed 16 October 2020, [19]; Dispute Resolution Notice, a copy of which is found at Response, annexure RG13.
A copy of the Notice provided to Mr Homans is not in evidence before me. However, Mr Homans’ Dispute Resolution Notice refers to a market review notice having been received.
Mr Homans says that his site agreement provided for 3 yearly (market) rent reviews from 2014, a date prior to the date of his agreement.[56] Whilst it could be clearer, I understand that he says it should have provided for 3 yearly market reviews from the date of his agreement and that therefore he was not due for a market review until 1 September 2021. Mr Homans does not provide any evidence that the written agreement signed by the parties does not reflect the agreement reached by them and should be rectified to show the parties true intentions. Parties are free to negotiate the terms of their individual site agreements. With limited exceptions, a party signing an agreement is taken to have agreed to the agreement’s stated terms. Mr Homans’ submissions and evidence do not raise any such exceptions.
[56]Commenced 22 January 2015.Site Agreement schedule10 and GLRP Special Terms Part 3 Home Owner’s further obligations, cl 3.2.
There is nothing in Part 11 of the Act, which deals with varying site rent, which prohibits such an agreement as to the timing of market reviews.
On my calculation a 3 year market rent review from 2014 in a site agreement with a 1 September review date falls due on 1 September 2017 and then 1 September 2020. However, Mr Homans gives evidence[57] that his rent was reviewed based on a market assessment in September 2016. He acknowledges that he did not dispute this increase at the time. He does not set out any basis upon which he says he can effectively dispute that now. The next 3 yearly market review would be due 1 September 2019. The review which took place on 1 January 2020 was to reflect reviews in site agreements on a date on or before 1 January 2020.
[57]Statement Richard Homans filed 1 April 2021, [2].
No other applicant contends they received an incorrect type of notice. In the absence of specific submissions and evidence on this point I have only considered Mr Homans’ contentions in relation to his site agreement.

Should the CPI increases be set aside?

I am not satisfied that the ‘CPI’ increases should be set aside.
The Applicants say that historically a uniform CPI increase was applied but that the general increase from 1 January 2020 varied. They say that sites with site agreements permitting a CPI increase must be increased on the same basis. They rely upon section 69C of the Act to dispute the application of different percentages and the date of the general increase day.
There is nothing in the submissions or evidence by which the Applicants dispute that the calculations in the Notices accurately reflect the terms of the individual site agreements. On that basis I accept the calculations.
The Park Owner says, and I accept after reviewing the site agreements in evidence before me, that there are various formulae set out in the site agreements to which ‘CPI’ increases apply. It is not disputed that the different formulae results in a different percentage increase.
On 27 November 2019 the Park Owner says that it provided review notices to homeowners whose site agreements provided for ‘CPI’ increases and that four different methods were applied depending upon the provisions of the relevant site agreement for 27 Applicants. It says it nominated 1 January 2020 as the general increase day for each group of site agreements with the same ‘CPI’ increase formula, each being a relevant basis.
An example of a Notice for each group is in evidence before me.[58]
[58]Statement of Jamie Scott Brown, annexure JSB01.
The Notice in respect of site 28 provides for a 1.9% increase based on an increase in the Consumer Price Index (All Groups) for Brisbane in the period September 2018 to September 2019. The Park Owner says this is one of six sites. The Applicants do not expressly dispute this contention. The site agreement for site 28 in evidence before me provides for a rent review annually. The site agreement was entered into on 23 July 1992.
The Notice in respect of site 45 provides for a 1.7% increase based on an increase in the Consumer Price Index (All Groups) Weighted Average of 8 capital cities in the period September 2018 to September 2019. The site agreement for site 45 in evidence before me provides for a rent review on this basis on 1 September 2019. The Park Owner says this is one of eleven sites. The Applicants do not expressly dispute this contention.
The Notice in respect of site 199 provides for a 1.6% increase based on an increase in the Consumer Price Index (All Groups) Weighted Average of 8 capital cities for the 12 months ending 30 June 2019. The site agreement for site 199 in evidence before me provides for a rent review on this basis on 1 September 2019. The Park Owner says this is one of three sites with the same formula. The Applicants do not expressly dispute this contention.
The Notice in respect of site 50 provides for a 1.5% increase based on an increase in the Consumer Price Index (All Groups) for Brisbane for the year ended 31 March 2019. The Park Owner says this is one of seven sites. The Applicants do not expressly dispute this contention. The site agreement for site 50 in evidence before me provides for a rent review on this basis on 1 July 2019.
The Applicants assert that a CPI increase of 1.6% should apply across all sites which has a CPI increase mechanism. This proposal does not comply with the terms of 24 of the 27 the site agreements, which received ‘CPI’ Notices.
There is nothing in section 69C of the Act nor the Explanatory Notes to the Bill, which inserted section 69C into the Act, which clearly limits what may be a relevant basis agreed in a site agreement. To the extent that a number of sites have site agreements, which provide the same ‘CPI’ increase formula I accept that they may constitute eligible sites and all of the group must have the same nominated general increase day.
Applying the ordinary meaning of the provision and having regard to the objects of the Act, I find that the Park Owner may nominate 1 January 2020 for a site with a site agreement, which allows for a particular formula of ‘CPI’ increase (the relevant basis) on 1 September 2019 or any day prior 1 January 2020 or 1 January 2020.
As stated earlier, the evidence before me is that the previous general increase day on and from 1 January 2018 was 1 January and therefore not less than one year before so that the nomination does not contravene section 69C(4) of the Act nor a breach of a site agreement, which nominates a different review date on or before 1 January 2020.
In deciding whether the proposed increase is excessive the Act provides that the Tribunal may have regard to ‘any increase in the CPI number during the previous site rent period’.[59] The Act defines CPI as ‘the all groups consumer price index for Brisbane published by the Australian statistician’.[60] There is nothing in the Act which prohibits the parties from agreeing, in an individual site agreement, to apply a CPI formula which uses a different definition.
[59]The Act, s 70(5).
[60]Ibid, Schedule 2 (definition CPI).
Although the evidence is that the park owner previously adopted a different approach there is insufficient evidence before me to find that such conduct should bind the current Park Owner particularly given the obligations to comply with the Act and the site agreements.
On the evidence before me I am not satisfied that the Park Owner was in breach of the Act or the site agreements in issuing the Notices based on ‘CPI’ increase formulae.
Section 70(5) of the Act sets out a number of matters which the Tribunal may have regard to in deciding the Application. The Applicants did not provide comprehensive submissions or evidence in relation to each of the listed matters. There is some evidence of a reduction of some communal facilities over a number of years. Although the evidence appears to be primarily directed at attempting to demonstrate the valuation should not be accepted, I have considered it in respect of whether the CPI increases are excessive.
I am not satisfied that the evidence provided by the Applicants in respect of those matters supports a finding that each of the ‘CPI’ increases should be set aside in its entirety, which is the order sought by the Applicants.[61] I am not satisfied that the evidence provided by the Applicants in respect of those matters supports a finding that another order is appropriate.[62]
[61]Ibid, s 70(4)(b).
[62]Ibid, s 70(4)(d).

Should amounts paid for the increases paid since 1 January 2020 be refunded?

Consequent upon my finding that the increase relying upon a market rent review ought to be set aside, the Park Owner must refund relevant Applicants any overpayment of the site rent since when the increased site rent has been paid.[63]
[63]Ibid, s 70(6).
As referred to earlier in these reasons there is limited evidence of which Notice was provided to each of the Applicants. The evidence is, and I accept, that Richard Homans, Fred Harris, Lance Callander, Norma Leo and Beryl Knapp received Notices based on market rent review. Given the state of the evidence I do not make specific findings as to which of the other Applicants received market review notices and are therefore due such a refund.