Leigh v Mulambin Sands Pty Ltd
[2011] QCATA 103
•6 May 2011
| CITATION: | Leigh v Mulambin Sands Pty Ltd [2011] QCATA 103 |
| PARTIES: | Sybil Leigh (Applicant/Appellant) |
| v | |
| Mulambin Sands Pty Ltd (Respondent) |
| APPLICATION NUMBER: | APL063-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 6 May 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Application for leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – MANUFACTURED HOMES – RESIDENTIAL TENANCIES – where Magistrate ordered that a tenancy be terminated due to Ms Leigh’s failure to remedy an alleged breach – where Ms Leigh seeks leave to appeal that decision on the grounds that the Magistrate erred by applying the Manufactured Homes (Residential Parks) Act 2003 and the Residential Tenancies and Rooming Accommodation Act 2008 – whether leave to appeal should be granted Manufactured Homes (Residential Parks) Act 2003 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers, pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Ms Leigh was the occupant of a structure at Capricorn Palms Holiday Village at Yeppoon. Mulambin Sands Pty Ltd, the operators of the premises, brought proceedings seeking an order that Ms Leigh’s tenancy in the premises be terminated because of her failure to remedy an alleged breach, under the tenancy agreement, and her subsequent failure to leave.
The matter was heard and decided by a Magistrate sitting as a QCAT Member in the Minor Civil Disputes jurisdiction, who held that the landlord was entitled to the relief it sought and directed that a warrant for possession of the site issue against Ms Leigh.
She has sought leave to appeal that decision. Leave is necessary: QCAT Act, s 142(3)(a)(i). Each party has provided written submissions and, by order of this Appeal Tribunal, the matter is to be determined on the papers.
Ms Leigh’s primary contention is that the learned Magistrate was wrong when she decided that the premises which Ms Leigh occupied in the holiday village were not premises to which the Manufactured Homes (Residential Parks) Act 2003 applied, and was also in error when she held that it was the Residential Tenancies and Rooming Accommodation Act 2008 which actually applied to them.
This is a matter which was explored at considerable length in the hearing before the Magistrate, and in respect of which she received evidence. Although Ms Leigh complains, in her application for leave to appeal, that she was denied natural justice because the Tribunal refused to consider her submission, the transcript of the hearing makes it clear that Ms Leigh adequately advanced and explained her own case; that the learned Magistrate took pains to ensure she understood her arguments; and, that Ms Leigh’s contentions were given a fair and proper hearing.
At page 2 of the transcript of the hearing on 28 January 2011 Ms Leigh is recorded as saying that her premises is not a caravan and is, in truth, a relocatable home to which the Manufactured Homes legislation applied.
Each of the parties was invited to make further submissions about this question and Ms Leigh sent in, and the Magistrate received, extracts from the relevant legislation; a receipt for her purchase of a ‘relocatable home’ in 2007; a sketch of the site and buildings; and, 10 photographs of both Ms Leigh’s premises, and other caravans in the park. Ms Leigh also provided a lengthy statement and submissions, over four pages. It is difficult to see how she could have been offered any more comprehensive opportunity to put her case.
On 25 February 2011 the learned Magistrate resumed the matter and announced her decision in which she found, relevantly, that the Manufactured Homes legislation did not apply to Ms Leigh’s premises because they were ‘… fixed to the site and it’s outside the definitions of the act’. She went on to say that she was satisfied that the matter is one which properly fell under the Residential Tenancies legislation.
Under the Manufactured Homes (Residential Parks) Act 2003 a manufactured home is defined, in s 10, to be a structure other than a caravan which has the character of a dwelling house, is not permanently attached to land, and is designed to be able to be moved from one position to another.
[10] There was, in evidence before the Tribunal, a document signed by Ms Leigh called a Movable Dwelling Tenancy Agreement under the Residential Tenancies Act 1994, in which Ms Leigh’s premises were described as a ‘caravan & hard annex’ together with inclusions described as ‘annex, carport, garden shed’.
[11] Under the Residential Tenancies Act 1994 a movable dwelling is defined to mean either a caravan, or a manufactured home: Residential Tenancies Act 1994, sch 3.
[12] The learned Magistrate made a finding of fact about these premises: that they are fixed to the site. She heard evidence, and received submissions, about that aspect of the matter. It cannot be said, on the evidence before her, that the finding of fact was not reasonably open.
[13] Once that is understood, neither can it be said that her determination that the premises do not therefore fit within the definition of manufactured home in the Manufactured Homes legislation was not a reasonable one, open to her on a reasonable analysis of the legislation; nor can it be said that her determination that the premises are the kind to which the residential tenancies legislation applies is unreasonable.
[14] The first exhibit, the Tenancy Agreement, was signed by Ms Leigh on 26 June 2009 and acknowledges that the premises are a ‘moveable dwelling’ comprised of a caravan and hard annex. In light of that agreement it may not, with respect, have been necessary for her Honour to make a finding of fact about any connection between the structure and the site, referable to the Manufactured Homes legislation, but even if that finding was irrelevant it was not, for the reasons set out earlier, either mistaken, or not open. In light of the way Ms Leigh conducted her case it is, in truth, unsurprising that the learned Magistrate thought it necessary to make a specific finding to that effect.
[15] Once these elements are understood it is impossible to see any error in the learned Magistrate’s decision, or any basis upon which leave to appeal should be granted. The application for leave is refused.
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