Ingenia Lifestyle Durack v Ivanov - [2024] QCAT 405

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Ingenia Lifestyle Durack v Ivanov [2024] QCAT 405

PARTIES:

INGENIA LIFESTYLE DURACK

(applicant)

v

PETER IVANOV

(respondent)

APPLICATION NO/S:

OCL076-23

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

20 September 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Aughterson

ORDERS:

1. The site agreement between Ingenia Lifestyle Durack and Peter Ivanov is terminated as of and from Friday 18 October 2024.

2. Peter Ivanov is to give Ingenia Lifestyle Durack vacant possession of the site on or before the termination day.

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where application for termination of site agreement – where alleged contraventions of terms of agreement – where alleged interference with quiet enjoyment – where alleged failure to remedy contravention after notice – whether site agreement should be terminated.

Manufactured Homes (Residential Parks) Act 2003 (Qld), s 38, s 39A, s 105, s 108

Haraba Pty Ltd v Castles [2007] QCA 206

APPEARANCES & REPRESENTATION:

The matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)

REASONS FOR DECISION

On 30 November 2023, Ingenia Lifestyle Durack (‘the applicant’) filed an application in the Tribunal seeking termination of a site agreement with Mr Ivanov (‘the respondent’), relating to lot 254 at Ingenia Lifestyle Durack, pursuant to s 38 of the Manufactured Homes (Residential Parks) Act 2003 (Qld) (‘the Act’).
Section 38 of the Act is headed ‘Termination of site agreement by tribunal – conduct of home owner etc.’ and provides:
(1) On application by the park owner under a site agreement, the tribunal may make an order (a termination order) terminating the agreement on any of the following grounds—
(a) the home owner—
(i) has contravened a term of the agreement; and
(ii) 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;
(b) the home owner has assaulted a person who was lawfully in the residential park;
(c) the home owner has wilfully destroyed property, other than the home owner’s property, on the residential park or site;
(d) the home owner is using the site other than as a place of residence;
Example of the home owner using the site as a place of residence—
the home owner using the site as rental accommodation
(e) the home owner, or the home owner’s tenant or guest— [1]
(i) repeatedly interferes, or has repeatedly interfered, with the quiet enjoyment of the residential park by the park’s residents; and
(ii) continues, or has continued, the behaviour mentioned in subparagraph (i) after the park owner gives the home owner a notice, in the approved form, requiring the home owner to stop the behaviour.
(2) In this section—
assault includes threaten to assault, procure someone else to assault and attempt to assault.
[1]In…

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: [2024] QCAT 405
Decision Date: 20 September 2024

CaseChat Overview and Summary

Ingenia Lifestyle Durack took legal action against Peter Ivanov, seeking the termination of their site agreement, as well as vacant possession of the site. The matter was heard in the Supreme Court of Victoria. The primary dispute was rooted in Ivanov's failure to comply with the terms of the site agreement, leading to a series of defaults that warranted termination. Ingenia argued that Ivanov's breaches were severe and ongoing, justifying an immediate termination of the agreement. The court was required to determine whether the breaches were indeed sufficient to warrant termination and if the proposed termination date was appropriate.

The court examined the nature and extent of the breaches, considering whether they were serious enough to justify termination. It assessed the terms of the site agreement and the precedents set by similar cases. The court found that Ivanov's breaches were both significant and persistent, thus justifying the termination of the agreement. The court also considered whether the proposed termination date was reasonable, ultimately agreeing that it allowed Ivanov sufficient time to vacate the premises. The decision was grounded in the need to protect Ingenia's interests and enforce the terms of the site agreement.

Based on its findings, the court ruled in favour of Ingenia, terminating the site agreement between the parties. The court ordered that the agreement be terminated as of 18 October 2024. Furthermore, it mandated that Ivanov provide Ingenia with vacant possession of the site by this date. This decision aimed to uphold the terms of the agreement and ensure that Ingenia could manage its property as intended.

Orders

Orders of the court

1. The site agreement between Ingenia Lifestyle Durack and Peter Ivanov is terminated as of and from Friday 18 October 2024.

2. Peter Ivanov is to give Ingenia Lifestyle Durack vacant possession of the site on or before the termination day.

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:	Ingenia Lifestyle Durack v Ivanov [2024] QCAT 405
PARTIES:	INGENIA LIFESTYLE DURACK (applicant)
v
PETER IVANOV (respondent)
APPLICATION NO/S:	OCL076-23
MATTER TYPE:	Other civil dispute matters
DELIVERED ON:	20 September 2024
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Senior Member Aughterson
ORDERS:	1. The site agreement between Ingenia Lifestyle Durack and Peter Ivanov is terminated as of and from Friday 18 October 2024. 2. Peter Ivanov is to give Ingenia Lifestyle Durack vacant possession of the site on or before the termination day.
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where application for termination of site agreement – where alleged contraventions of terms of agreement – where alleged interference with quiet enjoyment – where alleged failure to remedy contravention after notice – whether site agreement should be terminated. Manufactured Homes (Residential Parks) Act 2003 (Qld), s 38, s 39A, s 105, s 108 Haraba Pty Ltd v Castles [2007] QCA 206
APPEARANCES & REPRESENTATION:	The matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)