McKegney v Roofley Pty Ltd

[2011] QCATA 221

CITATION: McKegney v Roofley Pty Ltd [2011] QCAT 221

PARTIES:	Mr John Walter McKegney
v
Roofley Pty Ltd t/a Caboolture Caravan Park

APPLICATION NUMBER:   APL290-10

MATTER TYPE: Appeals

HEARING DATE:     24 May 2011

HEARD AT:  Brisbane

DECISION OF: Kerrie O'Callaghan, Senior Member
Anne Forbes, Member

DELIVERED ON: 5 August 2011

DELIVERED AT:      Brisbane

ORDERS MADE: Leave to appeal refused.

CATCHWORDS:

Appeal – leave to appeal – whether structure a manufactured home – whether leave to appeal should be granted

Manufactured Homes (Residential Parks) Act 2003, s 10
Queensland Civil and Administrative Tribunal Act 2009, ss 142, 147

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers, pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. The Appellant Mr McKegney seeks an order for the execution of a site agreement under the Manufactured Homes Residential Parks Act 2003 (“MHA”). The Tribunal’s jurisdiction under that Act depends on a finding that the Appellant’s dwelling is a “manufactured home” within the meaning of s 10 of the MHA, prior to the amendment of that section by the Manufactured Homes Residential Parks Amendment Act 2010. See s 169(3) of the 2010 Act.

1. At first instance the learned Member decided that the Applicant’s dwelling is not a manufactured home, and dismissed the proceedings for want of jurisdiction.  From that decision Mr McKegney appeals.

1. The respondent states in their submissions that the grounds of appeal set out in the application are “somewhat confusing” and have set out what they understand the grounds of appeal to be in their submission.

1. Having read the application and the basis of the complaints we accept the respondent’s submissions that the ground for appeal can be categorised as follows:

a)The learned primary Member erred in finding that the Tribunal lacked jurisdiction to determine the matter (paragraphs 1–4 of applicant’s letter 12 November 2010).

b)The learned primary Member erred by failing to find that the structure was easily detachable in sections without any extraordinary damage to the structure (paragraph 5 and 6 of the letter).

c)The learned primary Member erred in interpreting section 10 of the MHA by failing to appreciate that the section did not qualify the design necessary to determine whether a structure was designed to be able to be moved from one position to another (paragraph 7 of the letter).

d)The learned primary Member erred by accepting the evidence of Mr Saint that the structure was not relocatable when the Building Code of Australia required the structure to comply with the tie down requirements applicable to a “class 1” structure (paragraphs 8, 9, 10 of the letter).

e)The learned primary Member erred by failing to take into account the evidence of a recently built manufactured home a double story structure fastened to a concrete slab and permanently attached to land (paragraph 11 of the letter).

f)The learned primary Member erred for the reasons set out in what is described as “commentary on the…