McGuire v Opal Gardens Pty Ltd
[2018] QCAT 178
•29 May 2018
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
McGuire v Opal Gardens Pty Ltd [2018] QCAT 178
PARTIES:
PAUL KENNETH MCGUIRE
(applicant)v OPAL GARDENS PTY LTD
(respondent)
APPLICATION NO:
OCL 073-17
MATTER TYPE:
Other civil dispute matters
DELIVERED ON:
29 May 2018
HEARING DATE:
29 March 2018
HEARD AT:
Brisbane
DECISION OF:
Member Burke
ORDERS:
Application dismissed.
CATCHWORDS:
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – manufactured homes – breach of quiet enjoyment – application for termination of site agreement between park owner and another resident
Manufactured Homes (Residential Parks) Act 2003, s 12, s 16, s 17, s 38, s 86(1), s 104, s 105
APPEARANCES & REPRESENTATION:
Applicant:
Self-represented
Respondent:
V Pullich, Director of Opal Gardens Pty Ltd
REASONS FOR DECISION
The Respondent, trading as Opal by Living Gems (‘Opal Gardens’), is the registered owner of a residential park as defined in ss 11 and 12 of the Manufactured Homes (Residential Parks) Act 2003 (‘the Act’) located at 6-42 Quinzeh Creek Road Logan Village Queensland (‘the residential park’).
The Applicant (‘Mr McGuire’) is a home owner of Villa 92 located in the residential park, in accordance with s 8 of the Act. Mr McGuire’s home at the residential park is a manufactured home as defined in s 10 of the Act.
The residential park is managed by Mr Chapman (‘the park manager’).
By application dated 23 October 2017, Mr McGuire alleges that Opal Gardens has breached the site agreement entered into between the parties on or about 8 October 2016 in that Opal Gardens failed to take action to ensure that Mr McGuire’s right to quiet enjoyment was reinstated.
Mr McGuire alleges that Opal Gardens is in breach of s 86(1) of the Act and seeks the following orders, namely:
(a)that the Respondent make application pursuant to s 38 of the Act to the Queensland Civil and Administrative Tribunal seeking termination of the site agreement entered into between the Respondent and another home owner, Mr Edward Mullins, who is a resident at Villa 4 Opal Gardens 6-42 Quinzeh Creek Road Logan Village; and
(b)costs against the Respondent, namely the application fee incurred by the Applicant.
Mr McGuire relies upon s 38(1)(b) of the Act to support the relief sought on the ground that Mr Mullins assaulted him on 20 July 2017.
Relevant Legislation
The objects of the Act are set out in s 4 which states:
4 Objects of the Act
(1)The main object of this Act is to regulate, and promote fair trading practices in, the operation of residential parks –
(a)to protect home owners from unfair business practices; and
(b)to enable home owners, and prospective home owners, to make informed choices by being fully aware of their rights and responsibilities in their relationship with park owners.
The basic responsibilities of park owners and home owners are set out in ss 16 and 17 of the Act. Within those sections there is reference to the obligations of each of the home owner and park owner in ss 104 and 105 of the Act.[1]
[1]See ss 16(d) and 17(e) of the Act.
Part 16 of the Act specifically identifies the obligations relating to the behaviour of park owners and home owners. The relevant sections of Part 16 are set out hereunder:[2]
[2]‘Complete Response’ is defined in s 104(4) as a written response addressing each complaint, proposal and question in the relevant correspondence.
104 Park owner to respect rights of home owners and other residents
(1) The park owner for a residential park must respect the rights of home owners and other residents of the park.
(2) Without limiting subsection (1), the park owner –
(a)must not unreasonably interfere with, or allow interference with, the reasonable peace, comfort or privacy of a home owner or other resident; and
(b)must take reasonable steps to ensure a home owner or other resident, or guest of a home owner or other resident, does not interfere with the reasonable peace, comfort or privacy of another home owner or resident; and
(c)must use the park owner’s best endeavours to ensure each home owner or other resident lives in an environment free from harassment and intimidation; and
…
(f)must, within 21 days after receiving relevant correspondent from the home owner or other resident, or a representative of a home owner or other resident (each a correspondent), give the correspondent a complete response to the relevant correspondence.
105 Home owners to respect rights of others
(1)A home owner for a residential park must respect the rights of other residents of the park and other persons in the park.
(2)Without limiting subsection (1), a home owner –
(a)must not unreasonably interfere with, or allow interference with, the reasonable peace, comfort or privacy of another resident; and
(b)must respect the right of the park owner, park manager or a representative of the park owner or manager to work in an environment free from harassment and intimidation;
…
Under Part 14 of the Act relating to the residential park operations, the park owner’s obligations are set out in s 86(1):
86 Quiet Enjoyment
(1)The park owner for a residential park must take reasonable steps to ensure a home owner has quiet enjoyment of the home owner’s site in the park and the common areas.
Part 6 of the Act sets out the only ways in which a site agreement may be terminated Relevantly, s 38(1) provides:
38 Termination of site agreement by Tribunal
(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 –
(b)the home owner has assaulted a person who was lawfully in the residential park.
…
(3)In this section –
assault includes threaten to assault, procure someone else to assault and attempt to assault.
The Site Agreement
The site agreement entered into between Mr McGuire and Opal Gardens sets out in
s 5 the basic responsibilities of home owners and in s 6 the basic responsibilities of park owners.
Section 6.2 of the site agreement provides:
6.2 Other obligations of park owners
Quiet Enjoyment
6.2.1The park owner must take reasonable steps to ensure home owners have quiet enjoyment of their sites and common areas.
6.2.2The park owner or park manager must not interfere with the home owners’ reasonable peace, comfort and privacy.
Background
The strained relationship between Mr McGuire and Mr Mullins appears to have commenced on or about 15 July 2017 when both parties were attending a car boot sale at the barbeque pavilion at the residential park. On this day a conversation occurred between the two men regarding the return of the bingo balls and ball stand, which was the property of the Opal Gardens Residents’ Club Inc. (‘the Club’) to the Club’s cupboard. It may be the case that the relationship had started to deteriorate before that date but for present purposes there is no evidence in that regard.
Mr Mullins was a committee member of the Club and had taken it upon himself to make this request to which Mr McGuire stated that he replied that he would do as requested.
On 20 July 2017 at another function, namely a sing-a-long in the music room at the Club, Mr McGuire says that Mr Mullins approached Mr McGuire seeking his attention. After some ten minutes, Mr McGuire met with Mr Mullins and says that he was told by Mr Mullins how to conduct the bingo session later in the day. Mr McGuire gave evidence that Mr Mullins’ manner was intimidating leading to his complaint to the park manager’s office. Mr McGuire was told to ignore Mr Mullins’ direction and to complain by email.
Later on the same day, whilst setting up for the bingo session after lunch, Mr McGuire states that he was approached by Mr Mullins in an intimidating manner accusing Mr McGuire of talking about him to others about his previous episodes of harassment and intimidation. Mr McGuire denied this assertion stating that he was talking about a church function to the other resident, Mr Parry.
During this conversation, there were about eight bingo players present but Mr McGuire removed himself from the confrontation.
Mr McGuire says that he approached the park manager, Mr Chapman, who was in a nearby area and reported the situation. He says that Mr Chapman advised him to write a complaint about Mr Mullins’ harassment to both himself and to the Club committee.
Mr McGuire says that on his return to the bingo area he was approached by Mr Mullins who was very agitated and threatened him with the words ‘Outside and I’ll knock your head off’.
Mr McGuire says that he walked away and started the bingo session. Whilst conducting the bingo session, Mr McGuire says that Mr Mullins sat at the table opposite him and stared at him in an attempt to harass him.
On 20 July 2017, Mrs Margaret McGuire composed two emails (in the same terms) to be sent by Mr McGuire to the Club Residents’ committee and to the park manager complaining about Mr Mullins’ behaviour that day.[3]
[3]Exhibits A and B to application dated 23 October 2017.
On 26 July 2017, Mr McGuire forwarded a letter to the Secretary of Opal Gardens complaining about the incidents on 20 July 2017 alleging that Mr Mullins had assaulted Mr McGuire.[4] Mr McGuire requested that the Club consider Mr Mullins’ position on the management committee due to his erratic and aggressive behaviour.
[4]Exhibit C to application dated 23 October 2017.
Another letter dated 26 July 2017 was forwarded to the park manager and general manager of Opal Gardens outlining the assault and threatening behaviour in similar terms and requesting that action be taken to terminate the site agreement with Mr Mullins. Mr McGuire requested a reply to his letter within 14 days.[5]
[5]Exhibit D to application dated 23 October 2017.
A reply from the secretary of the Club was received by Mr McGuire on about
11 August 2017. The Club had convened a meeting and formed the view that as the matter involved an alleged altercation between 2 individuals it was not appropriate for the Club committee to become involved.[6]
[6]Exhibit E to application dated 23 October 2017.
As a response had not been received by Mr McGuire from the park manager,
Mr Chapman, as requested in his letter dated 26 July 2017, on 21 August 2017
Mr McGuire wrote to the Opal Gardens Home Owners’ Committee requesting that the Committee perform its function under s 102 of the Act and deal with the park owner about his complaint.[7]
[7]Exhibit F to application dated 23 October 2017.
By letter dated 24 August 2017, the Secretary of the Club replied to Mr McGuire regarding the role of the Home Owners Committee confirming that the role of the Committee was not to be involved in issues between two individual home owners but rather to deal with the park owner regarding the day to day running of the park and any complaint or proposal about the operation of the park.[8]
[8]Exhibit G to application dated 23 October 2017
By letter dated 5 September 2017, Mr McGuire requested the general manager of Opal Gardens to take action to terminate the site agreement with Mr Mullins as he had received no response from the park manager, Mr Chapman, about his complaint and his allegation of assault by Mr Mullins was a proper ground for seeking termination of the site agreement before the Queensland Commercial Administrative Tribunal (‘the Tribunal’) pursuant to s 38(1)(b) of the Act.
On 16 October 2017, Mr McGuire issued a Notice to Remedy Breach (‘Form 6 notice’) to Opal Gardens alleging a breach of s 6.2.1 of his site agreement in that
Mr McGuire’s right to quiet enjoyment of the residential park was not being afforded to him while Mr Mullins continued to serve in the bar of the clubhouse of the bowling club.
In the Form 6 notice, Mr McGuire outlined further behaviour of hostility and harassment by Mr Mullins on 6 October 2017 and requested that Mr Mullins be banned from the residential park communal facilities until a determination regarding the termination of Mr Mullins’ site agreement had been reached in the Tribunal.[9]
[9]Exhibit H to application dated 23 October 2017.
On 16 October 2017, the manager of operations of Opal Gardens responded to Mr McGuire’s letter dated 5 September and acknowledged receipt of the Form 6 notice. The response from Opal Gardens provided in part:[10]
Firstly, let me clarify that since receiving your letter by mail, I made urgent enquiries with the Park Manager. The Park Manager informed me of relevant correspondence/events leading up to your letter plus he kept me up to date with any progress. I was recently pleased to hear from the Park Manager that you intended to retract your letter and had been working on an amicable solution to your situation, It is therefore regrettable that you wish to pursue this matter.
Unfortunately in this instance, after taking into consideration all the information at hand, the Park Owner is not empowered under the Act to assist you with your concerns.
I also take into consideration your Form 6 Remedy to Breach in which you reference “Quiet Enjoyment” under the Act, and reiterated within your Site Agreement. Unfortunately, you have misinterpreted the intention of this term which only applies to obligations between the Park Owner and the Home Owner (you). To clarify, a Home Owner is not empowered under the Act to force, or for that matter breach, a Park Owner to terminate an agreement of another Home Owner.
On behalf of the Park Owner, I hope a suitable solution presents itself shortly.
[10]Exhibit J to application dated 23 October 2017.
Discussion
The alleged breach is that Opal Gardens, in breach of s 86(1) of the Act and s 6.2.1 of Part 2 of the site agreement, failed to take reasonable steps to ensure that
Mr McGuire had quiet enjoyment of his site and the common areas. Given that the term in the site agreement mirrors the requirements of the Act, I shall refer to the breach of the Act as the primary allegation.
Mr McGuire’s evidence relies primarily on the incident on 20 July 2017 which he asserts amounted to an assault on him by Mr Mullins.
Mr McGuire’s evidence was corroborated by the evidence of his wife, Mrs Margaret Mullins, who gave evidence that she heard the words alleged to have been spoken by Mr Mullins.
Two other witnesses were called on behalf of the Applicant, namely Mr Alan Philips and Mr Austin Parry. Both witnesses were reliable in their accounts of incidents at the residential park and eager to assist the Tribunal.
Mr Phillips gave evidence of the tension between Mr Mullins and Mr McGuire and stated that he witnessed the tone of voice and mannerisms of Mr Mullins.
Mr Phillips admitted that he did not hear the words ‘Come outside and I’ll knock your head off’.
Mr Parry gave evidence of the aggressive behaviour of Mr Mullins as he also had had altercations with Mr Mullins on previous occasions. His statement did not refer to the fact that he heard the alleged words spoken by Mr Mullins to Mr McGuire on 20 July but he stated in evidence that he did hear those words. He could not however recall the day or the time of day when he heard those words.
Mr Chapman, the park manager, gave evidence relating to the complaints by
Mr McGuire. Mr Chapman is an experienced park manager. In two statements dated 19 February 2018, Mr Chapman outlines the steps he took when advised by Mr McGuire of Mr Mullins’ alleged ‘bullying and harassment’.
Mr Chapman gave evidence that upon being advised by Mr McGuire of an incident of bullying and harassment by Mr Mullins on 20 July 2017, he advised Mr McGuire to put his complaint in writing to the Committee and to him. He then investigated the matter by making enquiries of other residents in the community hall about any incident earlier that day.
Mr McGuire’s two letters dated 20 July to the Residents’ Committee and to the park manager respectively set out in detail the events on 20 July 2017. The letters, drafted by Mrs McGuire, were in similar words and detail. Neither of the letters referred to the alleged words being spoken by Mr Mullins, or the term ‘assault’.
When questioned about this anomaly, Mr McGuire stated that he was not aware that the threat by words was an assault under the Act. No explanation however was provided for the omission of an account of the spoken words which were alleged to have been spoken on that day.
Mr Chapman gave evidence that the first he knew of the alleged assault was after receipt of the letter on 26 July 2017. He then embarked on an investigation interviewing other residents. He formed the view that there was no substance to the allegation but that there was tension between Mr McGuire and Mr Mullins. He stated that he continued on a path of resolution trying to aid Mr McGuire to
re-integrate into the community as there had developed some ill-feeling towards him over his continued complaints regarding Mr Mullins’ behaviour and in relation to his behaviour generally.
Further complaints about Mr Mullins behaviour were made by Mr McGuire on
7 September, 20 September, 3 October, 13 October and 16 October 2017. All the complaints were made by Mr McGuire about Mr Mullins’ alleged harassment and bullying attitude.[11]
[11]See Mr Chapman’s statement dated 19 February 2017, paragraphs [16]-[20].
Mr Chapman gave evidence that he investigated every complaint submitted to him although he did not reply in writing to Mr McGuire’s letter of 26 July 2017. He admitted that, in hindsight, he should have replied in writing but he was certain that he had taken every complaint seriously and investigated whether any action should be taken against Mr Mullins. He said that he took a conciliatory path and tried to help Mr McGuire move on from the tension.
Mr Chapman stated that he thoroughly investigated the allegation of ‘aggression’ and said that he could not find any evidence that there had been an assault or that there had been any hard evidence requiring him to caution Mr Mullins.
It is noted that Mr Chapman did not refer to any discussion with or investigation of Mr Mullins himself. He was confident however that he had fully investigated Mr McGuire’s complaints and had formed the view that no action need be taken against Mr Mullins.
Mr Pullich, a director of Opal Gardens gave evidence that Mr Mullins had denied that he had assaulted Mr McGuire. This denial was during a conversation when Mr Pullich was investigating the matter.
Mr Pullich also referred to a letter dated 16 November 2017 from Mr Mullins setting out a complaint about the behaviour of Mr McGuire which he describes as threatening. The contents of that letter could not be confirmed given the fact that
Mr Mullins did not attend the hearing. The allegations of threatening behaviour were confirmed in a letter from Mr Stan Forrest, a resident at Villa 64 at the residential park.
Obviously, the relationship between Mr McGuire and Mr Mullins has deteriorated over time. It is also obvious that Mr Mullins has offended other residents in the residential park.
I am satisfied that Mr Mullins behaviour is at times inappropriate and unfriendly. I am satisfied that whilst the behaviour may appear unprovoked it is possibly the case that Mr Mullins is upset about the behaviour of others and is unable to move on.
Mr Mullins’ behaviour has caused Mr McGuire to also conduct himself in a manner which is not appropriate, for example, to the point of recording conversations with others.
This case, however, is not solely about the inability of individual residents to behave appropriately within the community. Rather, it concerns an allegation that the park owner ‘failed to take reasonable steps to ensure each home owner has quiet enjoyment of the site and common areas’ and thus breached its obligations under the site agreement between Mr McGuire and Opal Gardens and consequently the terms of the Act.
It is therefore necessary to consider the actions taken by Opal Gardens regarding the complaint by Mr McGuire.
Mr Chapman’s investigation was for the purpose of addressing Mr McGuire’s complaints and thus for the purpose of addressing Mr McGuire’s entitlement to quiet enjoyment at the residential park. I am satisfied, on the evidence of Mr Pullich and Mr Chapman, that Mr Chapman took reasonable steps to investigate Mr McGuire’s complaints and thus took reasonable steps to ensure that Mr McGuire was afforded quiet enjoyment of the site and common areas. Whilst I am satisfied that Mr Chapman failed to respond in writing to Mr McGuire’s complaints, I accept that Mr Chapman carried out a proper investigation of the complaints and kept Mr McGuire informed of his investigations.
Whilst I appreciate that Mr Chapman perceived that he took all reasonable steps to find a solution to the problem between the two gentlemen, it is regrettable that he did not formalise the results of his investigations so that Mr McGuire was fully informed of the process.
Further, there was little evidence from Mr Chapman that he approached Mr Mullins about the accusations. This step would have been an important ingredient in properly investigating the complaint. Having said that, Mr Chapman had formed the view from interviewing other members of the community that the altercations between Mr Mullins and Mr McGuire were minor issues and that the complaints were exaggerated by Mr McGuire in the context of the perception held by other members of the community.
The obligations of the park owner are set out in Part 16, s 104 of the Act. The park owner for a residential park must respect the rights of home owners and other residents of the park. Those obligations include the following:
(a)The park owner must not unreasonably interfere with, or allow interference with, the reasonable peace, comfort or privacy of a home owner or other resident;
(b)The park owner must take reasonable steps to ensure a home owner or other resident, or guest of a home owner of other resident, does not interfere with the reasonable peace, comfort or privacy of another home owner or resident; and
(c)The park owner must use the park owner’s best endeavours to ensure each home owner of other resident lives in an environment free from harassment and intimidation.
Whilst s 104 of the Act is couched in strict terms regarding the park owner’s obligations and responsibilities for the provision of a reasonably peaceful environment and one free of harassment and intimidation, the park owner cannot be expected to monitor every movement of every home owner and the relationship between each and every resident. However, on receipt of complaints from a home owner, it is incumbent upon the park owner, or its representative, to take reasonable steps to ensure that the complainant’s concerns are addressed.
In the event that multiple complaints are made about a particular resident and his or her behaviour, it is the responsibility of the park owner to address those concerns.
In the present circumstances, I am satisfied that Mr Chapman took reasonable steps to address the complaints of Mr McGuire which particularised that Mr Mullins’ aggressive behaviour was interfering with his quiet enjoyment of the site and common areas.
The claim by Mr McGuire is one of breach of the Act or his site agreement with Opal Gardens. Whether there has been an assault or not need not be determined by me in this application. The issue to be determined is whether Opal Gardens is in breach by failing to take reasonable steps to ensure Mr McGuire had quiet enjoyment.
Having concluded that there has been no breach by Opal Gardens there is no necessity for this Tribunal to address the claim for relief sought by Mr McGuire, namely whether Opal Gardens should be ordered to make an application under
s 38 of the Act.
For the reasons above, the formal order of the Tribunal will be that the application is dismissed.
By way of observation, however, I should add that in the event that an allegation of assault has been made by a home owner, it is imperative that the park owner take very seriously the accusation and that every step possible be taken to fully investigate the matter. Whilst I accept that Mr Chapman took reasonable steps to investigate the allegations, I am of the view that consideration should have been given to documenting the events and versions of the parties involved.
I accept that Mr Mullins’ behaviour has been perceived by others as aggressive and hostile. Mr Parry and Mr Phillips confirmed this fact. In the circumstances, consideration should be given by the park owner as to whether Mr Mullins should be cautioned. The fact that Mr Mullins is an 86 year old must be taken into account to the extent that it would be a relevant factor which a Court or Tribunal may rely upon in considering an application to terminate his site agreement, particularly in circumstances of a once only verbal assault. Having said that, Mr Mullins’ behaviour cannot be condoned and it is essential that the park owner put in place conditions which would temper any aggressive behaviour and harassment of residents and take reasonable steps to ensure a quiet and comfortable environment for all residents.
The residential park as a community requires all residents to behave in a respectful and peaceful environment. Obviously, personalities are going to clash and it is not for the park owner to control the likes and dislikes of various residents. It is, however, essential for the park owner to seriously consider complaints made in a formal manner.
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