Maszlik v Lorraine Palmer Pty Ltd - [2013] QCAT 607

CITATION:

Maszlik v Lorraine Palmer Pty Ltd [2013] QCAT 607

PARTIES:	Miranda Maszlik (Applicant/ Respondent)
v
Lorraine Palmer Pty Ltd (Respondent/ Applicant)

APPLICATION NUMBER:

OCL023-13 and OCL051-13

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

31 October 2013

HEARD AT:

Bundaberg

DECISION OF:

Member Milburn

DELIVERED ON:

11 November 2013

DELIVERED AT:

Hervey Bay

ORDERS MADE:

1. The application for a mandatory injunction to compel work to be undertaken or the destruction of the improvements, upon site 29a of the Bundaberg Park Lodge is refused.

2. Miranda Maszlik is ordered to pay to Lorraine Palmer Pty Ltd the sum of $4,375.

CATCHWORDS:

MANUFACTURED HOMES – TERMS OF AN AGREEMENT – CONVERTED CARAVAN OR MANUFACTURED HOME – EQUITABLE RELIEF – JURISDICTION – MANDATORY INJUNCTION - where the Park owners sought an order of the Tribunal to bring the subject site up to safe standard or alternatively order its demolition – mandatory injunction – where the subject site was the subject of a Manufactured Home Park agreement – where the improvements on site were found to be a converted caravan – whether QCAT has jurisdiction to deal with the matter – power to grant equitable relief – damages.

Manufactured Homes (Residential Parks) Act 2003 ss 10A, 10(2), 10(3)
Queensland Civil and Administrative Tribunal Act 2009 s (59)(1)

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Miranda Maszlik

RESPONDENT:

Lorraine Palmer Pty Ltd trading as Bundaberg Park Lodge represented by John Oakes, manager

REASONS FOR DECISION

Ms Maszlik is the owner of improvements built upon site 29a of the Bundaberg Park Lodge, a manufactured home park in Bundaberg. The owner of the park is Lorraine Palmer Pty Ltd trading as Bundaberg Park Lodge.
The park is a mixed use park, consisting of some sites categorised as manufactured home sites, which includes the site rented by Ms Maszlik.
As a preliminary jurisdictional question the Tribunal must consider whether the homeowner party owns a "manufactured home" as defined in the Manufactured Homes (Residential Parks) Act 2003, rather than a caravan. Based on the evidence presented to the Tribunal, I find that the subject site improvements might best be described as a converted caravan, as defined in section 10A of the Act[1], being a structure that as originally designed, was a caravan, and is no longer a caravan because of a structural addition. A converted caravan does not fit within the definition of what constitutes a manufactured home[2]. However, section 10(3) of the Act provides that a converted caravan owner and park owner may agree to enter into a site agreement under the Act. The parties in this case have entered into a site agreement and neither party submitted that the jurisdiction of the Tribunal was ousted.
[1] Manufactured Homes (Residential Parks) Act 2003.
[2] Section 10(2) of the Act; by amendment in 2012.
The Tribunal is satisfied that Lorraine Palmer Pty Ltd is a park owner and that a site agreement exists between it and Ms Maszlik in respect of site 29a and therefore the Tribunal has jurisdiction to hear the matter[3].
[3]Wadley Properties No 1 Pty Ltd v Davis [2012] QCAT 73 deals with a similar situation and the decision of Mr Jim Allen, member, at paragraph 22, is supported in this case.
In her application, the homeowner Ms Maszlik, who does not reside in the property, and has let the property on a commercial basis, seeks:
a)    an order allowing for the ongoing operation of the site agreement;
b)    an order not inconsistent with an ability to continue to rent out the subject site on a commercial basis; and
c)    an order to recover losses representing:
i)     an amount underpaid by the park owner due and payable to her as result of an agreement between the parties where, for a period of time, the park owner represented Ms Maszlik in letting the subject site premises to 3rd parties on a commercial basis; and
ii)    damages for loss as result of the park owner wrongfully failing to consent to Ms Maszlik renting the subject site to 3rd parties on a commercial basis.
In response, Lorraine Palmer Pty Ltd seeks:
a) an order of the Tribunal to bring the building occupying the subject site up to a safe standard or an order for its demolition; and
b) an amount representing unpaid site rental[4].
[4]During the hearing and in submissions, there was reference made to a request that the Tribunal make an order to terminate the agreement based on failure to comply with a notice to remedy breach dated 17 January 2013, but the initiating application did not seek such an order from the Tribunal. It is noted that the power of the Tribunal to consider making such an order must be made on application by the park owner.
The parties claimed other ancillary monetary orders to do with costs, outlays and interest.
The orders sought by the parties necessitate that the Tribunal give consideration to whether it is conferred with power to make, at least some of, the orders the parties seek. In this regard the following applications require jurisdictional consideration;
a) The homeowner sought to enforce an agreement which was made partly verbally and partly in writing in relation to the letting of the subject site to 3rd parties on a commercial basis.
b) Conversely, amongst other things, the park owner seeks an order from the Tribunal to bring the building occupying the subject site up to safe standard or an order for its demolition.
The Tribunal is conferred with number of powers under the Act although such powers are in addition to, and not in substitution for, a right or remedy the person would have apart from the Act[5]. A reference to a right or remedy a person would have apart from this Act is a reference to a right or remedy that is consistent with the Act[6]. As noted by His Honour Judge Dearden in Palmpoint Pty Ltd v The Residents of Bribie Pines Island Village & Ors[7], the additional rights and remedies which are available both to home owners and park owners under the Act are supplementary to common law rights, so long as those rights are consistent with the Act[8].
[5] Section 5(1) of the Act.
[6] Section 5(3) of the Act.
[7] [2007] QDC 130 (10 May 2007).
[8] At [16].
QCAT is designed to deal with matters in a way that is accessible, fair, just, economical, informal and quick[9]. The Tribunal must have the power to do so conferred upon it in each instance. Any order that it makes must be made with proper authority.
[9]Section 3 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), adopted in the context of this case by His Honour Justice Alan Wilson, President in Batwing Resorts Pty Ltd v Body Corporate for Liberty on Tedder CTS 27241 [2011] QCAT 277
I am not satisfied the Tribunal does have power to make, or if it does, should make, at least some of, the orders sought by the parties.
Firstly, I deal with the application made by Ms Maszlik, as the homeowner, where she seeks an order for compensation in relation to an agreement which is not directly related to the site agreement. That is to say, an agreement partly verbal and partly recorded in writing, in relation to the letting of her site to 3rd parties on a commercial basis. Even though neither party raised the issue, I am not persuaded that the Tribunal has power to enforce such claimed rights pursuant to the agreement of this type as, in the context of this case, it only has power to make orders between homeowners and park owners relating to site agreements. Strictly, I need not have dealt with this issue as Ms Maszlik withdrew this part of her application towards the end of the hearing.
Secondly, I deal with the more substantial issue raised by the park owner where it seeks an order to bring up to safe standard the building occupying the subject site or an order for its demolition. In my view this is a matter best left to the relevant Regional Council, in this case the Bundaberg Regional Council. It is noted that during the course of the hearing Mr John Oakes, representing the interests of the park owner, gave evidence to the effect that he had made enquiries of the relevant council and been told by a qualified officer that such matters are within its jurisdictional authority, but given its current lack of resources, the Council would not be able to attend to dealing with such issues for a period of some 18 months, suggesting, as an alternative, that the park owner seek an order of the Tribunal instead.
The request made by the park owner is that I make an order which is effectively a mandatory injunction. As such, section 59 of the Queensland Civil and Administrative Tribunal Act 2009 provides the Tribunal has jurisdiction to grant an injunction if it is just and convenient to do so. The power conferred upon the Tribunal to grant injunctions is not limited to prohibitive (negative) injunctions. It does have power to grant mandatory injunctions[10]. In my opinion this is not an appropriate instance where such an order should be made. Nor, in my view, is it appropriate to invoke the power conferred upon the Tribunal pursuant to section 60 of the QCAT Act to make a declaration instead of an order.
[10]McLaren on behalf of the Edgewater Village Home Owners Committee v Capital Four Edgewater Pty Ltd [2012] QCAT 93, per Dr JR Forbes, Member at [14].
I therefore find that the Tribunal ought not to exercise its discretion to make an order by way of injunction or declaration. That is particularly in light of my conclusion in this case that the improvement upon subject site, being a converted caravan, is not a manufactured home[11]. Further, for QCAT, as a tribunal, to exercise powers as far reaching as declarations and injunctions, it must do so cautiously in circumstances where the power to do so is clearly evident in the statute said to confer it[12]. In this instance, the park owner has sought the assistance of the Tribunal to exercise its limited equitable jurisdiction in circumstances where it has not provided the statutory basis upon which to do so. The powers conferred upon the Tribunal pursuant to sections 59 and 60 of the QCAT Act are wide[13] but exercisable only where specific statutory authority to do so has been conferred upon it.
[11]In her evidence Ms Maszlik stated that she acquired the home in 2010 for the sum of $15,000. It remained in essentially the same state, although in lesser condition, up to the date of hearing. Ms Maszlik described the home as essentially a caravan and annex structure, including ensuite, in liveable condition. The home comprises a number of parts being a caravan, to which is attached a fixed structure, described in the proceedings as a ‘donga’, with one side removed to enable it to be attached to some other structures such as shed, toilet and veranda.
[12]As per the comments of his honour Justice Alan Wilson, president in Batwing Resorts Pty Ltd v Body Corporate for Liberty on Tedder CTS 27241 [2011] QCAT 277 at [20], where His Honour made reference to Queensland Fish Board v Bunney, ex parte Queensland Fish Board [1979] Qd R 301at 303.
[13]Coop v State of Queensland [2013] QCAT 263, per comments of Clare Endicott, Senior Member at [16].
Even if it were possible to make the type of order sought by the park owner, it would not be in the interests of justice to do so.
Claim by Lorraine Palmer Pty Ltd for unpaid site fees
I now turn to the question of a claim by Lorraine Palmer Pty Ltd as park owner for unpaid site fees due and payable by Ms Maszlik, the homeowner. Ms Maszlik readily concedes that she has not paid all site fees payable pursuant to her site agreement, for the reasons stated, and indicates that according to her records up to the date of hearing the amount outstanding was $3,570 plus an adjustment. The evidence of the park owner[14] is that the amount outstanding is as at the day before the hearing, 30 October 2013, the sum of $4,375. The park owner was able to establish, to my satisfaction, the correct amount owed by Ms Maszlik. I find this amount is due and payable.
Claim by Ms Maszlik for loss occasioned by the failure of Lorraine Palmer Pty Ltd to consent to renting the subject site to 3rd parties
[14] As referred to in exhibit 2 (OCL 051 – 13).

Lorraine Palmer Pty Ltd refused to consent to letting the subject site to 3rd parties on the basis that the subject site was unsafe, structurally unsound and lacking appropriate necessary compliance certificates. In this regard, it relied upon the report of Mr Rick Drew of Burnett Country Certifiers who, by report dated 23 November 2012, stated that the subject structure on site 29 would be classified as a special structure under the Building Act 1975 and would have to comply with the provisions of the Building Code of Australia, which it does not. In addition, and of greater concern, is his observation that "of major concern is that as a result of all of the non-compliance issues, the structure is likely to provide a large amount of flying debris in a storm or cyclone that would cause serious damage to surrounding buildings and death or injury to people. Clearly the building cannot be used for habitable purposes and should be demolished as soon as possible[15]."
[15] At page 2.
In response, Ms Maszlik produced a report prepared by Mr Glenn King of BPI Bundaberg, dated 21 February 2013. I note the report deals exclusively with issues relating to the quality of the construction and not compliance issues. I refer to page 6 of the report where, under the heading of scope of report, the report writer comments that "the standard property report is not intended as a certificate of compliance of the property within the requirements of any act, regulation, ordinance or by law, or, as warranty or an insurance policy against problems developing with the building in the future."
Given that in my view, the report by Mr Glenn King is limited in its stated intent, I favour the report of Mr Rick Drew when considering the question of issues relating to safety.
Ms Maszlik called two witnesses, Ms Peta Edwards and Mr Daniel McIntosh, who both indicated that they would be happy to rent the caravan, however were told that they were not able to do so. They gave evidence to the effect that the park owner’s representatives said the caravan was not habitable and had been condemned. I accept their evidence. I note the caravan has not been condemned but I do accept that given the conclusions of Mr Rick Drew, the park owner had good reason not to consent to the letting of the caravan to 3rd parties.
As result of that finding, I reject the application made by Ms Maszlik for compensation for loss of income as a result of the failure by the park owner to provide its consent to the proposed letting of the subject site to 3rd parties.
Termination of the site agreement
I make no order in relation to termination of the site agreement as the application has not been brought before the Tribunal seeking such an order.
Orders
I make the following orders:
a) The application for a mandatory injunction to compel work to be undertaken, or the destruction of the improvements, upon site 29a of the Bundaberg Park Lodge is refused.
b) Miranda Maszlik is ordered to pay to Lorraine Palmer Pty Ltd the sum of $4,375.