Matthews v Tamberra Pty Ltd ATF the Max Ahlfeld Family Trust t/as Sugar Coast Relocatable Estate
[2014] QCAT 697
•28 November 2014
| CITATION: | Matthews & Ors v Tamberra Pty Ltd ATF The Max Ahlfeld Family Trust t/as Sugar Coast Relocatable Estate [2014] QCAT 697 |
| PARTIES: | Ann Matthews and the persons named in Annexure A (Applicant) |
| v | |
| Tamberra Pty Ltd ATF The Max Ahlfeld Family Trust t/as Sugar Coast Relocatable Estate (Respondent) |
| APPLICATION NUMBER: | OCL083-13; OCL101-13 |
PARTIES: | Tamberra Pty Ltd ATF The Max Ahlfeld Family Trust t/as Sugar Coast Relocatable Estate (Applicant) |
| v | |
| Roy Mackie, Elfrida Miklavc, Athol Patch, Fredertika Patch, Selwyn Rees, Michael Thompson, Peter Warner, Patricia Warner, David Watson, Keith Vass (Respondent) |
| APPLICATION NUMBER: | OCL015-14 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | 20 August 2014 |
| HEARD AT: | Hervey Bay |
| DECISION OF: | Member Lewis |
| DELIVERED ON: | 28 November 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The site rent effective from 1 November 2013 for sites without a market review provision is confirmed at $154.70 per week. 2. The site rent effective from 1 November 2013 for sites with a market review provision is reduced from $159 per week to $157 per week 3. The site rent effective from 1 January 2014 for sites given a notice under section 71 of the Manufactured Homes (Residential Parks) Act 2003 is reduced from $156.60 per week to $155.50 per week. 4. The site rent effective from 1 February 2014 is reduced: a. for sites where the notice provided for rental at $162.44 per week, to $159.50; b. for sites where the notice provided for rental at $166.95 per week, to $161 per week; c. for sites where the notice provided for rental at $172.40 per week, to $165.30; d. for sites where the notice provided for rental at $170.15 per week, to $163.15. 5. Order 2 does not apply to John Wright and Effie Wright (site 29) and Tony Cronin and Chris Cronin (site 47). 6. Order 4 does not apply to Jack Rowlands and Laurie Rowlands (site 4), Ron Paulsen (site 6), Jim Scott (site 10), Estate of Stella Anderson (site 19), Carol Paterson (site 23), John Wright and Effie Wright (site 29), Brian Keegan and Lorraine Keegan (site 32), Noel Smith (site 36), Tony Cronin and Chris Cronin (site 47), and Lee Evans (site 48). 7. In case there are any errors in these lists the parties are at liberty to apply for any amendment by 12 January 2015. 8. Beryl and Ken Streeter, Jim Scott and Jack and Laurie Rowland are at liberty to apply for an amendment in relation to an error in the lists by 30 January 2015.[1] |
[1]Decision amended on 15 January 2015.
| CATCHWORDS: | MANUFACTURED HOMES – market review – application to reduce rent increase – application for increase for significant increase in costs – where aspects of claim previously decided – relevance of change in GST status – where agreements contain provision for both fixed rate and consumer price index increases Manufactured Homes (Residential Parks) Act 2003, ss 69, 70, 71 M & T Entriken v Nicholson & Ors [2014] QCATA 182 |
APPEARANCES:
| APPLICANTS: | Leslie Bowie and Monica Fornier |
| RESPONDENT: | Tamberra Pty Ltd ATF The Max Ahlfeld Family Trust t/as Sugar Coast Relocatable Estate represented by Max Ahlfield |
REASONS FOR DECISION
Tamberra Pty Ltd, the respondent in the first of these applications, is the park owner of Sugar Coast Relocatable Home Estate, in Urangan, Hervey Bay. Mr Max Ahlfeld is a director of Tamberra. The park is a residential park operating under the Manufactured Homes (Residential Parks) Act 2003 (Act).
The applicants are home owners. The various applications relate to the park owner’s attempts to increase its site rent, and the home owners’ resistance to those increases.
There are two ways in which a park owner can increase site rent under the Act. If the site agreement makes provision for an increase, it can give the home owners a notice under section 69 setting out the amount of the increased rent and how it is calculated. If the owners consider the increase excessive they can apply to the tribunal for an order about it,[2] and the tribunal can confirm, set aside or reduce the increase. That application must be made within 28 days after receiving the notice of increase. The increase applies until the tribunal decides the matter. If the owners do not apply to the tribunal the increase stands. The day on which the increase takes effect cannot be earlier than 28 days from notice.
[2]Act s 70.
Further, if the park wishes to increase the rent where section 69 does not apply[3], it can do so under section 71 if certain conditions apply, such as significant increased operational costs. For a section 71 increase, the home owners are required to give notice to the park as to whether they agree to the increase or not. If they do not give any notice they are taken not to agree. If the parties do not agree within 28 days the park owner can apply to the tribunal for an order. In this case the increase does not apply unless there is an order. The increase date cannot be earlier then 2 months from the notice.
[3]For example if there is no appropriate provision for the increase under the site agreement.
These matters involve both section 69 and section 71 increases. The position is complicated because there are a variety of types of site agreement containing differing increase provisions, and therefore the increase notices are based on varying calculations, there have been later notices issued before the earlier ones have been resolved, and the park owner has purported to withdraw some notices and replace them with new ones. There are three (or in reality four) applications, and the parties are not the same in each case. Because of the number of permutations, it is necessary to set out the position in some detail.
The types of agreements
The material identifies a number of agreement types, classified by the rental increase provisions. So far as is practicable I will follow Tamberra’s classifications.
Type 1 agreements provide for an increase of 5% per annum or increases in the consumer price index, whichever is the greater. The date for the increase is 1 February, which is common to the various types.
Type 2 agreements have a fixed 5% increase, plus a three yearly market review “should the need arise”. However as some of the agreements are more than three years old and some are not, a market review is applicable only to the older agreements. I will call these type 2A, and the agreements less than three years type 2B.
At some stage Tamberra changed its standard agreement again, and introduced a new formula for increases. I will call these type 3. The formula is that the increase equals R x C + (X/Y). R is the old rental. C is the CPI increase as a percentage. X is the local authority rates increase, and Y is the total number of sites. While the agreement states that this is to be used to recover increases in rates[4], the effect of this is to build in a CPI increase as well. However this is in addition to the fixed 5% increase. So the park could increase by 5% plus CPI plus a pro rata share of the rates increase.
[4]Special Terms, 2(b).
Some at least of the type 3 agreements contain a market review clause as well. It may be that all do, although that is not clear.
The increase notices
The first of the notices to which the applications relate were issued in October 2013.[5] On 1 October the park owner issued various notices under section 69. For type 1 and type 2B agreements the increase was 5%, taking the rent from $147.33 per week to $154.70. For type 2A, it was 5% plus market review, taking those rents from $147.33 to $159. The increase date was 1 November 2013.
[5]Earlier notices were issued in December 2012 and June 2013, which were withdrawn. They are relevant only in respect of the period of time since the last effective increase.
On 30 or 31 October the park issued more notices, under section 71. These were issued to types 1 and 2B, i.e. the types where there was no operative market review clause. This took (or would take once operative) rents on these agreements to $156.60. The increase date was 1 January 2014.
According to Tamberra, notices were issued to 28 type 1 sites, 13 type 2A, and 32 type 2B. For the remaining 7 sites no notices were issued.
Tamberra issued more section 69 notices on 2 January 2014. These were the annual increase notices, and in each case the increase day was 1 February 2014. There were four different notices, again depending on the site agreement type.
For the type 1 and 2B sites, the notice[6] was for a 5% increase. Although these had received the section 71 notice, that increase was not yet operative, so the notice provided for calculation from the base of $154.70, to $162.40.
[6]Tamberra has numbered the notices in a different order. See Mr Ahlfeld’s statement of 8 May 2014. See page 23 and annexure 28. This is his notice 4.
For type 2A[7], this was also a fixed 5% increase, though from their base of $159 to $166.95.
[7]Notice 1.
The third notice[8] was to what I will call type 3A. Tamberra says this was sent to those that had a market review increase in October, or who had agreed to pay $159 per week, and who now have a formula increase in their agreement. They were charged the 5% plus the formula increase, and rental increased from $159 to $172.40.
[8]Notice 2.
The last variant[9] was sent to those who have a new agreement including the formula, but whose rent was $156.85. While it is not clear why some new agreements were at $159 and some at $156.85, the increase in this case was also 5% fixed, plus a formula increase, taking the new rent to $170.15. I will call these type 3B sites.
[9]Notice 3.
All 80 home owners received a January notice of one kind or another.
There was one further notice issued to Mr and Mrs Patch only. He had issued them a notice for a 5% increase only, whereas their agreement contained the formula. Accordingly he issued a new notice, adding the formula increase, on 3 March 2014.
The applications
The home owners, or at least 73 of them filed an application in the tribunal opposing the October section 69 notices. This is application OCL083-13. The applicants sought that the increases be set aside, that the increase be at the CPI, and that the CPI rises be averaged over five years. Tamberra filed a response on 14 February 2014.
Tamberra filed an application (OCL101-13) on 17 December seeking to uphold its section 71 notices. While Mr Ahlfeld’s statement [10] said that he had served 60 such notices, the application says 57 were served, and that is the number of home owners named as respondents. The tribunal ordered that this application be consolidated with OCL083-13.
[10]Op cit, page 8.
In its statements for 083-13, Tamberra had asserted that as none of the home owners had filed an application against the January notices, those increases could not be opposed in that application. Under section 69 the application must be filed within 28 days of the notice. At the hearing, the home owners’ representatives stated that they had indeed filed such an application.
On examination of the material, there was a document on the file[11] which was the application which the home owners were referring to. It is not in the usual form for an initiating application, but is an Application for decision/order by consent. Nonetheless it does oppose the January increases, and its annexures include copies of three of the different notices sent in that round. It is dated 20 January 2014, and also annexes a copy of a letter to Tamberra of the same date. It bears a received stamp. The stamp is not clear, it may be either 23 or 28 January. One of the annexures is clearly 23. In any event either date is within the time limit.
[11]Registry document number AP003.
Mrs Fornier said that the document had been slid under the tribunal’s door out of hours, with a number of other documents. These included an application for disclosure of documents in OCL083-13, and it appears the registry staff assumed all of the documents related to that file, and therefore did not treat it as a new application.
At the hearing the question was raised as to whether this should be treated as an application for the purposes of section 70. My tentative view expressed then was that the home owners should not be disadvantaged by some confusion in the registry, albeit that the home owners’ representatives may have inadvertently contributed by failing to identify their documents adequately. Further it made practical sense to be able to consider all proposed increases on their merits, and may avoid the otherwise almost inevitable application for no increase or even a reduction when the 2015 round of notices are issued. Tamberra’s final submissions do not take issue with this approach, and I will therefore treat this as a valid application. I will refer to it as the January application.
The last of the applications is OCL015-14. Some of the home owners didn’t pay the increases, and Tamberra brought an application on 17 February 2014 to recover arrears. The respondents filed a response seeking that clause 2(b) (the formula clause) be removed from the agreement. The Patches were later joined as respondents to that application. At the hearing I ordered that that matter be heard with the other matters.
If the increases sought were to stand, the position would be that as at 1 November 2013, rents would range from $154.70 to $159. At 1 January 2014 they would be from $156.60 to $159. From 1 February, they would range from $162.40 to $172.40. I will deal with each of the proposed increases in turn.
Market review
The park owner submitted a report from a valuer, Mr Jamie Brown, who also gave evidence at the hearing. Mr Brown is experienced in valuing site rentals for home parks such as this. His report was made on 27 July 2013, and therefore pre-dated all of the notices. However he gave his valuation as at 1 September 2013, so it correlates closely with the increase date.
Because of the date on which the report was prepared, some of the information needs to be read cautiously. Much of the comment relates to the notices which were issued in June 2013 but abandoned by the park owner. They were abandoned as the park had adopted what it saw later as an incorrect way of dealing with a change in GST status, and much of Mr Brown’s analysis dwelt on what he saw as the importance of correcting that. As a result, some of his figures do not quite match the information from the park owner itself. His figure for current rental was not the correct figure at the time of these applications. However putting that to one side, one can nonetheless discern his underlying analysis and conclusions. For comparison purposes I will work on the park owner’s pre-increase rental at $147.33.
Mr Brown compared Sugar Coast with other parks in Hervey Bay. He thought Hazelmere Village was the most equivalent, but slightly superior. At the time of his report its rents had been increased to $160 (from $142). However about half the residents had applied to the tribunal about this. The tribunal found that the rent should be $147. That decision had been appealed, and in July this year the appeal was upheld in part[12] and the matter was remitted for a rehearing. No decision on that has been published at the time of this decision. Mr Brown said that he would adopt $160 as the market rent as half the residents were prepared to accept that. I do not see that that follows, as half were not. That some did not join in the application does not necessarily mean that they agreed that the rental was correct. The rental for Hazelmere includes water rates, whereas at Sugar Coast these are paid by the individual home owners.[13]
[12]M & T Entriken Pty Ltd v Nicholson & Ors [2014] QCATA 182.
[13]The park gives them a 20% subsidy if they pay on time.
These rentals were due to increase by a 2% CPI rise in October 2013, bringing them to $149.94 or $163.20 depending on the final tribunal decision.
Noble Lakeside was under development and not directly comparable. It is a higher market development, but the rentals are kept lower as the park owner is selling new homes. Its rent is $155.96, the last increase being July 2013.
Golden Shores were $ 157.50 (water inclusive) at October 2012 with market review due October 2013. Mr Brown said they are historically ten to twelve dollars above Sugar Coast.
Rents for Torquay Waters were due to rise to $156.55 at September 2013. They had recently begun to charge water additionally. Brown considered this park inferior.
Mr Brown’s opinion was that for the sites with a market review clause, Sugar Coast should be between Torquay Waters and Hazelmere. For reasons that are not apparent, he rounded Torquay Waters up to $158, and adopted $160 for Hazelmere, and settled for $159 as his value.
He also calculated that the cost increases for 2011/12 over 2010/11 equated to $1.92 per site, after allowing for a 5% increase. He therefore recommended that the other sites should have this added to their 5% increase. The 5% ($7.37) brings the rent to $154.70, and the expenses component brings the total to $156.60.
This report was given before the October notices, and the notices effectively reflect that advice.
The home owners did not call any expert evidence on market value.
Section 71 claim
The park owner’s accountant Mr Camenzuli prepared a statement calculating the increased costs in the 2012 financial year compared with 2011.[14] The figures were amended in final statements as the earlier figures did not allow for the home owners paying the water rates. Amended, the total increase is $37,534. This is $9.02 per site per week. The amended figures would make a slight difference to Mr Brown’s calculation above. After the 5% increase, the extra expense would be only $1.65. Of course the 5% increase is not only to cover extra overhead, but needs to allow for a profit margin.
[14]The figures exclude depreciation, finance costs, donations, and electricity costs which are recovered from the home owners.
Of the increase, the major component is repairs and maintenance at $22,203. Rates are $11,818 and wages $9,414. There was a drop in “other” of $11,745.
The accountant also advised that rates for 2013 had increased by a further $9,530 in 2013 and $9,379 in 2014. No information was given for other costs in those periods.
The park owner does not want to rely on the 2013 and 2014 rates figures, but says that his section 71 claim (and the section 69 increases) are based on 2012 expenditure. He may want to rely on later figures for later increases.[15] Similarly the valuer said in his report[16] that 2012 figures were used ‘as 2012/2013 is not a market review year’. Perhaps it wasn’t intended to be, but since, consequent upon the withdrawal of the earlier notices, the market review claims were made in October 2013, it is not obvious why 2013 figures cannot be used. However the park’s notices were based on the 2012 increases, and given the park owner’s submission that he wants this review limited to that year’s increase, I will proceed on that basis.
[15]See Tamberra’s further submissions of 12 September 2014, [7] – [13].
[16]Paragraph [121].
This does exacerbate one problem for the park owner however, and that is that he has already had a claim for a section 71 increase based on the 2012 rates increase considered and rejected by the tribunal. This matter was the subject of application OCL121-11, which I heard on 27 March 2013, and gave a decision on 20 June 2013.[17]
[17]Tamberra Pty Ltd as trustee v The Home Owners Committee, Jones & Ors [2013] QCAT 299.
In that matter, Tamberra based its claim on rates increases for 2012, and evidenced its claim on an analysis of increases over 10 years. It submitted that in that period rates had increased by 140% but rental only by 75%. However over the same period the CPI had increased only 37%. An analysis of the actual figures showed that after allowing for payment of the rates out of the site rent, his balance available had increased by 63%, that is by 1.7 times CPI. As there was no evidence that his other expenses had increased by more than the CPI, there should have been ample in the annual increases to provide him a buffer for rates increases.[18]
[18]Ibid, see from [22].
To the extent that this present claim relies on rates increases, I hold that that matter has been decided. However the earlier claim did not rely on other increases. I therefore propose to deduct the rates component from the accountant’s figures and consider the claim on the balance. This produces an increase of $25,716 or $6.18 per site per week. The 5% increase provides $7.37, so there is about $1.20 surplus after costs increases.
The January increases and the formula increase.
The January 2014 notices applied the annual 5% increase, but also, for new agreements, applied the formula referred to above, While this purports to recover increases in rates, it also provides a CPI based increase. This is in addition to the 5%. The notices applied a CPI figure of 2%. Allowing for the rates increase this would provide the park with a total increase of about 8.4%.
The hearing heard that the formula had been developed by the industry, and was increasingly being adopted. However it was not clear whether this was generally being included on top of a fixed percentage increase. If it is, then there is an element of double dipping here.
The sites which did not have the formula in their agreements were increased only by the 5%.
The GST question
Parks such as Sugar Coast have an option about how to deal with GST. They can either treat the rent as being subject to GST, in which event as it is long-term accommodation GST is payable at half the usual rate. They are entitled to claim input credits at the usual rate of one eleventh of the gross for expenses containing GST. They would remit the balance to the tax office. Alternatively they can proceed on the basis that the rent is GST-free. In this event they cannot claim the GST on their purchases.
The evidence was that parks in the early stages of development, or which conduct other activities, may opt for the first method. However when the park is developed the outgoings which have a GST component are less and it is usually better to adopt the second approach.
Tamberra opted to switch to the second method from 1 February 2013. This did not affect the rent charged to the home owners, but it did mean Tamberra no longer had to pay 5.5% of its rents (less any credits) to the ATO. Thus Tamberra has more in its pocket at the end of the day. The home owners feel this should be taken into account. The park disagrees.
Mr Camenzuli says in his supplementary report that the amount being remitted from the rent before the change was $7.68 per site. He estimated that the input credits were $2.41 per week. This was based on a general review of 2014 expenditure but not on a precise review of each item. My own calculation, based on his 2012 expenditure figures after excluding non GST items was $2.03. It might be fair to work on figures at the review dates at somewhere nearer his figure. I will assume a net of saving to the park of $5.30 per site per week.
The valuer did not think the GST saving was relevant, as it does not affect the rent paid by the home owners, who cannot claim the GST in any event. He says that market reviews deal in gross rent terms. I agree that it is not relevant to a market review. However it does not follow that it is not relevant to other factors.
Mr Ahlfeld submits that it is no more relevant than for example, if a park owner had excess land which he sold at a profit, or if he operated another business or won lotto. He says how the park elects to treat its tax affairs is no concern of the home owners. I disagree. His examples are indeed matters unrelated to the park, but the GST is not. It affects how much net profit he earns, directly from the park, in the same way that say another park specific tax change (to take a fanciful example, a significant reduction in rates) would do.
He also argues that any saving is taken up in expenses. This ignores the fact that it is just one more factor in the income and expenditure figures. It is part of the circumstances of the case and can be considered as part of the just and equitable provisions. The benefit does not apply for any period prior to 1 February 2013.
Other factors
Section 70 sets out the matters the tribunal must take into account. For the section 71 claim the rent cannot be based on a market review.[19] I can however take into account the effect of the separate market review on the site rent.[20] The relevant matters are in my view the following.
[19]Section 71(2).
[20]That forms part of the section 70(3)(d) and (e) matters.
The previous site rent was $147.33. Mr Ahlfeld’s statement[21] refers to this as being the rent prior to 1 February 2013. It is not clear when the previous increase was, but it may have been 1 February 2012. As mentioned, the earlier increase notices were abandoned. Therefore for the 1 October notices, the old rent will have been in effect for perhaps as much as 21 months by the increase date of 1 November 2013. The section 71 and the January increases will of course follow close behind. Nonetheless the length of time prior to the October increase is a factor tending to suggest a higher figure than might otherwise be the case for that increase.
[21]Annexure 20.
The CPI figures show an increase from 99.7 in December 2011 to 103.8 in September 2013, an increase of 4.1%. For December 2013 the figure is 104.6, an increase of 0.8% from September, and 4.9% for the two years from December 2011. If the park is granted the two 5% increases that will in effect be double the CPI rate. With the market review and section 71 increases the disparity will be more.
The home owners complained that the park had not been kept up to standard. They supplied a number of photographs, some rather old but some apparently more recent. These did show some areas of neglect. Tamberra also submitted photos which showed a well-kept precinct. No doubt each chose the time and place which best suited their case. The valuer had inspected the site in May 2013 and again the day before the hearing. He said it appeared well looked after and he did not notice any significant issues. Overall, I do not think the evidence is sufficient to make any adjustment to the rental on the basis of the amenity and standard of the property.
The home owners also referred to the withdrawal of a bus service. The park says they can now avail themselves of a limousine service. It is not clear if this change was in the review period. In any event I do not think it is significant enough to require any adjustment.
In their final submissions the home owners submit a table of operating costs compared with site rent. This shows an increasing profit margin. Unfortunately the table does not identify where the expenditure figures have come from, at least after 2012. I will nonetheless consider the profit margin as part of the final calculations.
There are also a number of affidavits filed by owners who feel aggrieved by the park management’s conduct. These include not being advised of the pending tribunal matters when buying their home, not having the increase provisions of the agreements drawn to their attention, and not being offered the option of an assignment of an old lease instead of having to sign a new lease. Even assuming that these are proper matters for these applications, I do not think it is practicable to address these matters in these proceedings, given that for reasons set out below I do not propose to make any orders to enforce claims for arrears.
The October increases
With respect to the 5% claim, I propose to allow this without deduction. I take into account that the home owners have had the benefit of a 9 month delay in the commencement of this increase.
I do not accept that the valuer has properly considered all of the relevant matters in his conclusion concerning market rent. While he refers to it, his figures do not make an adequate allowance for the fact that Hazelmere includes water rates in its rental figure. On the figures supplied by the park’s accountant, for Sugar Coast that adds an average of $1.90 to the overall cost. Further the valuer assumes that the higher Hazelmere figure of $160 is its market rent, whereas that issue is still under consideration. He does not take into account his comment that Golden Shores is usually ten to twelve dollars above Sugar Coast. While Golden Shores was due for another increase in October 2013, that is still likely to mean that, maintaining parity, this park should be less than $159.
On balance I find that a fair market rent at the notice day was $157. This of course incorporates the 5% claim. This will be the rent at 1 November for the type 2A sites.
On the section 71 claim, I will adjust on the basis that the rates are not part of the equation. This reduces the total expense increase from $9.02 to $6.18, a difference of $2.84. The park sought only $1.90 (the cost after the 5% increase). This would suggest no increase is justified. However the expense figures each relate to the whole of the expense increases. Some of those increases would be expected in the normal course. I think there is a difference between expected and usual increases and the significant increases contemplated by section 71. If the totals of my figure and the accountant’s are reduced, so too will be the difference between them. I will allow the park 80 cents per site for the sites the subject of these claims (my type 1 and 2B sites.)
The 5% increase brought the rental to $154.70 for these sites. That will apply from 1 November. From 1 January 2014, when the section 71 increase takes effect, the rent will be $155.50.
Given the delay in the applicability of these increases, I do not propose to make any adjustment for the GST issue in those claims.
The January increases
For the type 1 and 2B sites, who received notice 4, the 5% increase added $7.74 based on the rent applying ignoring the section 71 claim. That 5% would be slightly more based on my allowance above. However for this increase, I take into account the benefit the park has had in the change in its GST status. This in my view forms part of the fair and equitable considerations. I also take into account that a full 5%, on top of the October increases, would put the park well ahead of the CPI rises, obviously since the last increase, but even from February 2012.
The GST adjustment is really worth $5.30 per site. However I will not discount the increase by the full amount. I will allow an increase of $4 which will bring these sites to $159.50 from 1 February 2014.
The type 2A sites (notice 1) will be on a rental of $157 from 1 November 2013, in accordance with my decision above. I will allow the increase at $4 in this case also, bringing the new rental to $161.
There are a number of sites to which the formula increase also applies. Some or all of these sites are new residents – unfortunately the material does not make that clear. However for those sites to which it does apply, I need to determine if it should be allowed in this instance.
Mr Ahlfeld’s statement[22] says that the new residents signed agreements for rental at either $156.85 or $159. He did not serve them with the October notices and some were not residents then. Consequently the October increases, and my findings relating to them, do not apply to those parties.
[22]Annexure 20.
With respect to the January notices, in addition to the 5%, these sites included the formula increase. That had two components. The CPI component added either $3.14 or $3.18 (depending on the starting rent). The rates increase component added $2.36. For the reasons set out above, I consider the CPI component is double-dipping and does not meet the just and equitable test. I will allow the $4 flat increase as for the other sites, plus the rate increase component, rounded to $2.30.
This will mean a total January increase for these sites at $6.30. The end result will be either $163.15 or $165.30 depending on the starting point. These sites will still be higher than the others. While there is some attraction in equalising all sites, there may be reasons unknown to me for the differences, and I do not have sufficient information to do that safely.
The home owners did ask that the agreements be adjusted to provide for CPI increases only with a review (presumably to market) every three years. I do not think that is appropriate as there may be reasons why a simple CPI increase is not reasonable. While it is a little cumbersome, the present system allows for resolution of these matters.
I should add that while not specifically referred to, I have taken into account the evidence of the manager Mr Madin, and the operator of Hazelmere, Mr Entriken. Their useful comments are reflected in my reasons so far as they are relevant. In addition, I was referred to a number of authorities. Where relevant these have been taken into account.
Proper parties
Mr Ahlfeld has asked that certain people be removed from the list of parties, specifically those not served with the October notices. If they are parties I do not propose to remove them, but the orders relating to the October notices will not apply to them. He lists them as:
Mackie (site 38)
Vass (site 41)
Firth (site 43)
Patch (site 52)
Thompson (site 56)
Rees (site 61)
Wragg (site 54, but sold)
Herman (site 22)
Watson (site 54)
Miklavc (site 55)
Warner (site 73).
The section 71 increases will apply to the 57 parties served with the notice, and who are parties to OCL101-13.
The decisions in relation to the January notices will apply to those who are parties to the January application. These are listed in the attachments to Mr Bowie’s letter of 20 January 2014. There were 10 residents who were not a party to that application, being Rowlands (4), Paulsen (6), Scott (10), Anderson (19), Paterson (23), Wright (29), Keegan (32) Smith (36), Cronin (47), and Evans (48).
In case there are any errors in these lists I will give liberty to all parties to apply for any amendment.
With respect to application OCL015-14, this essentially sought enforcement of payment of arrears. As in most cases the rents were underpaid pending this decision, I expect that problem will rectify itself. Therefore I do not propose to make any orders under that application. I also do not propose to make orders deleting clause 2(b) from the agreements as asked by the home owners.
Annexure A
| Ann Matthews Annette Elliott Beth Collins Betty Higson Bev Henningsen Billy Griffith Bob Parry Brenda Carney Brian Carson Brian Keegan Bruce Hindmarsh Carmel Keene Carol Spencer Carol Paterson Chris Borg Colin Whitley Connie Schenk Dale Siedenburg Dan Patch Dave Squire Denis Jackson Desley Prestidge Elizabeth Reid Errol Peters Fran Robinson Frank Dunn Gordon Anderson Gwen Harris Jane Jones Janet Beardsmore Jenni Holland Jim Matthews | Joe Lacxko John Higson John Whelor Tony Small John Borg Joy Parry Josey Kiem Kath Dine Keith Vass Ken Grant Ken McNally Lee Evans Len Morley Les Bowie Liz Lacxko Lois Fitzgerald Lorraine Lewis Lorraine Keegan Lyn Squire Lyn Glass Lynda Brown Lynette Firth Marjorie Hindmarsh Mary Keyes Maureen Wall Michar Thompson Mike Vowell Mikhail Liakh Monique Fornier Nick Henningsen Noel Smith Pam Koreman | Pam Joule Pat McNally Pat Lake Pat Peters Peter Barker Phyllis Schulz Rex Collins Riet Patch Robert Reid Robert Reid Robyn Anderson Roger Clay Roger Neilsen Ron Paulsen Roy Schulz Roy Mackie Shirley Bowie Selwyn Rees Simon Morley Brian Prestidge Stan Clarke Stella Anderson Steve Glass Sylvia Morley Tony Sheils Trevor Keyes Trish Ferguson Wilma McFadden Beryl and Ken Streeter Jim Scott Jack and Laurie Rowland |