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 Geraghty decision” and the letter to the Tribunal from Mr Paton dated 2 November 2010 by making a decision that was not fair and just (the final unnumbered paragraph).

1. This is an appeal on both questions of law and fact and may only be bought with the leave of the Tribunal (section 142(3)(b) of the Queensland Civil and Administrative Tribunal Act 2009).

1. Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief.  Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?

1. As to the first issue we accept the submission of the respondent that the meaning and proper approach to interpreting section 10 of the MHA has been a subject of numerous decisions in the Commercial and Consumer Tribunal, the District Court and the Court of Appeal. There is no question of general importance that arises on the appeal and no further decision of this Tribunal would be of public advantage.

1. The next issue to be considered in deciding whether leave to appeal should be granted is whether there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief.

1. The MHA, as it stood when these proceedings began, defined a “manufactured home” as follows:

A manufactured home is a structure, other than a caravan or tent that (a) has the character of a dwelling house; (b) is designed to be able to be moved from one position to another; and (c) is not permanently attached to land.

[10]  At first instance the Appellant failed to satisfy the Tribunal that his dwelling was (i) designed to be moveable, and (ii) was not permanently attached to land.  The Appellant challenges each of those findings.

[11]  In support of his case, the Appellant tendered opinion evidence of David Paton, a retired builder, under the rubric of the Residential Park Home Owners Advocacy Service, of Burpengary, Queensland.

[12]  Expert evidence for the Respondent was given by the Respondent’s operations manager Hamish Baird, a mechanical engineer Garry Bow, a property consultant Keith Thomas, and a structural engineer Roy Saint.  Effectively Mr Thomas’s evidence supplemented Mr Saint’s.

[13]  For reasons that appear in paragraph [17] of his decision the learned Member preferred the evidence of Mr Saint to that of Mr Paton.  Having read and compared their respective reports, and the transcript of Mr Saint’s cross-examination we see no reason to differ from the Member’s preference.  We note that, in addition to relevant academic and professional qualifications, Mr Saint’s experience includes work on the many and varied projects listed on pages 16-23 of his report.  Those attributes have not been challenged.  Mr Saint concludes that “the structure (other than the caravan) ... is no more designed to be relocated that [a] conventional home constructed upon a slab. [It has] a foundation system that permanently attaches the structure to the land”.

[14]  The Applicant’s expert, Mr Paton is a retired builder of some thirty years’ experience.  He freely acknowledges that he has “no formal structural engineering qualifications and cannot resite [sic] engineering formula.”  However, he has “a structural background that requires the understanding of engineering principles”.  It is well settled that an expert can be qualified by practical experience without an academic or formal course of training[1] but the evidence of Mr Saint is clearly more articulate, detailed and impressive.  He did not resile from it under cross-examination.

[1]Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180 at 195; Casley-Smith v F S Evans and Sons Pty Ltd (No 1) (1988) 49 SASR 314.

[15] According to Mr Saint, while the caravan segment of the premises was originally designed for mobility, the same cannot be said of other components, such as the roof over the caravan, the storage room, the carport-laundry, bedroom, bathroom, kitchen, and verandah. The caravan segment is a minor part of the dwelling, and section 10 of the MHA refers to a “structure” in the singular, as an integrated entity. Even if the caravan, after considerable repairs, became a viable trailer again, we agree with the learned Member that the rest of the structure, and the dwelling as an amalgamated whole, is not designed for mobility, but is firmly affixed to the land.

[16]  The Appellant contends that any structure can be removed, so that no structure is “permanently attached to land”.  It is true, as the learned Member acknowledged, that traditional “Queenslanders” can be, and frequently are moved from one site to another, but it does not follow that they are designed as mobile homes.

[17]  A similar question came before the Court of Appeal in Monte Carlo Caravan Park Pty Ltd v Curyer & Anor[2].  We respectfully adopt the description, in the judgment of Keane JA (with whom Jerrard and Holmes JJA agreed) of the adapted caravan and annexures as “functionally ... one structure”[3], not designed for removal, and clearly attached to the land. 

[2] [2006] QCA 363.

[3][2006] QCA 363 at [15]. See also Meyer Arbavo Pty Ltd v PBS Property Pty Ltd [2008] QCCTMH 1.

[18]  The learned Member correctly decided that the structure occupied by the Appellant is not a “manufactured home”, and that the dispute is not one that the Tribunal may entertain.

[19]  The Appellant complains in broad terms of age discrimination, denial of natural justice and inadequate legal protection.  But sympathy cannot obscure the fact that the Tribunal has no licence to implement perceptions of fairness or natural justice, regardless of the laws that define its jurisdiction.

[20]  We see no error in the learned Member’s decision.  As noted above, it is a pre-condition of this appeal that leave to proceed is granted.  In our view it has no reasonable prospects of success and leave should be refused.

ORDER

1. Leave to appeal refused.