Limbada & Ors v Ahearn & Ors - [2005] QDC 164

DISTRICT COURT OF QUEENSLAND

CITATION: Limbada & Ors v Ahearn & Ors [2005] QDC 164
PARTIES: AYOUB ISMAIL LIMBADA atf THE AYOUB ISMAIL
LIMBADA FAMILY TRUST, EBRAHIM ISMAIL
LIMBADA atf THE EBRAHIM ISMAIL LIMBADA
FAMILY TRUST and YUSUF ISMAIL LIMBADA atf
THE YUSUF ISMAIL LIMBADA FAMILY TRUST

Appellants

v
BEVERLEY AHEARN, MARY MURRAY, JOHN
HUXLEY, GAIL SOUTHALL, DAVID SOUTHALL,
GLEN NELSON, STEVEN SOUTHALL, EMILY
SMITH, WILLIAM LANG, JOHN RIHIA, MILDRED
RIHIA, RAY OSMOND, ELSIE OSMOND, YVONNE
NEVILLE, THOMAS COOPER and BIRGIT CONTRO

Respondents

FILE NO/S: BD514/2005
DIVISION:
PROCEEDING: Appeal
ORIGINATING
COURT: Commercial and Consumer Tribunal
DELIVERED ON: 16 June 2005
DELIVERED AT: Brisbane
HEARING DATE: 18 March 2005
JUDGE: McGill DCJ
ORDER: Leave to the appellants to appeal. Appeal dismissed with
costs.

CATCHWORDS:

LANDLORD AND TENANT – Caravan Park – whether structures “manufactured homes” – whether finding as to jurisdiction by Commercial and Consumer Tribunal correct.
Manufactured Homes (Residential Parks) Act 2003 s 10
Residential Tenancies Act 1994 s 3A.
COUNSEL: P W Hackett for the appellants
G Bassett for the respondents
R J Byrnes for the Chief Executive, Department of Tourism,
Fair Trading and Wine Industry Development, as amicus
curiae
SOLICITORS: H Drakos & Company solicitors for the applicants
Queensland Tenants Union for the respondents
Crown Solicitor for the Chief Executive.

This is an application for leave to appeal from a decision of the Commercial and Consumer Tribunal on 20 January 2005 to order that the appellants “at their cost prepare and provide to [the respondents] written site agreements in accordance with s 25 of the Manufactured Homes (Residential Parks) Act 2003 using Manufactured Homes Form 2 produced by the Office of Fair Trading by 4.00pm on 31 January 2005.” In accordance with the usual practice, the arguments on the appeal were heard on the hearing of the application for leave.
The appellants are the owners of a caravan park. The respondents occupy sites within that caravan park on which are located structures they own[1] and in which they live. The respondents say that those structures are manufactured homes for the purposes of the Manufactured Homes (Residential Parks) Act 2003 (“the Act”). The appellants say that they are not, because they are caravans as defined in the Residential Tenancies Act 1994 s 3A, and therefore excluded from the definition of manufactured home in s 10 of the Act. This dispute is significant because the appellants wish to close down the caravan park and, if the respondents are right, they may have a statutory entitlement to compensation for disturbance as a result of the closure of the park under s 40 of the Act.
[1] This was conceded: appeal transcript p.14.

Leave to appeal

There is a right of appeal to this court from decisions of the tribunal, by leave of this court, only on the grounds of error of law or excess or want of jurisdiction: Commercial and Consumer Tribunal Act 2003 s 100. The appellant submitted that the tribunal had erred in law in concluding that the various…

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.

Continue reading Limbada & Ors v Ahearn & Ors

Details

AGLC: Limbada & Ors v Ahearn & Ors [2005] QDC 164
Case: [2005] QDC 164
Decision Date: 16/06/2005

CaseChat Overview and Summary

The case of Limbada & Ors v Ahearn & Ors involves an appeal from a decision made by the Commercial and Consumer Tribunal regarding the status of certain structures within a caravan park. The appellants, who are the park's owners, contest the tribunal's finding that the structures in question are "manufactured homes". This classification has significant implications under the Residential Tenancies Act 1995. The tribunal's ruling was challenged in the Supreme Court of Queensland, which was tasked with determining the correctness of the tribunal's jurisdictional finding and its classification of the structures.

The central legal issues before the court were whether the tribunal correctly exercised its jurisdiction under the Residential Tenancies Act 1995 to determine the status of the structures and whether these structures accurately qualified as "manufactured homes" under the Act. The court examined the statutory framework and definitions provided by the Act, along with relevant case law, to assess the tribunal's interpretation and application of the statutory provisions.

The Supreme Court, in dismissing the appeal, found that the tribunal was correct in exercising its jurisdiction and in classifying the structures as "manufactured homes". The court held that the tribunal's findings were supported by the evidence and were not erroneous. It further noted that the tribunal had properly interpreted the statutory provisions and applied them to the facts of the case. The appeal was thus dismissed with costs awarded to the respondents.

Orders

Orders of the court

Leave to the appellants to appeal. Appeal dismissed with

costs.

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:	Limbada & Ors v Ahearn & Ors [2005] QDC 164
PARTIES:	AYOUB ISMAIL LIMBADA atf THE AYOUB ISMAIL LIMBADA FAMILY TRUST, EBRAHIM ISMAIL LIMBADA atf THE EBRAHIM ISMAIL LIMBADA FAMILY TRUST and YUSUF ISMAIL LIMBADA atf THE YUSUF ISMAIL LIMBADA FAMILY TRUST

FILE NO/S:	BD514/2005
DIVISION:
PROCEEDING:	Appeal
ORIGINATING COURT:	Commercial and Consumer Tribunal
DELIVERED ON:	16 June 2005
DELIVERED AT:	Brisbane
HEARING DATE:	18 March 2005
JUDGE:	McGill DCJ
ORDER:	Leave to the appellants to appeal. Appeal dismissed with costs.
CATCHWORDS:	LANDLORD AND TENANT – Caravan Park – whether structures “manufactured homes” – whether finding as to jurisdiction by Commercial and Consumer Tribunal correct.
Manufactured Homes (Residential Parks) Act 2003 s 10 Residential Tenancies Act 1994 s 3A.
COUNSEL:	P W Hackett for the appellants G Bassett for the respondents R J Byrnes for the Chief Executive, Department of Tourism, Fair Trading and Wine Industry Development, as amicus curiae
SOLICITORS:	H Drakos & Company solicitors for the applicants Queensland Tenants Union for the respondents Crown Solicitor for the Chief Executive.