McKegney v Roofley Pty Ltd
[2010] QCAT 547
•14 October 2010
CITATION: McKegney v Roofley Pty Ltd [2010] QCAT 547
| PARTIES: | John Walter MCKEGNEY |
| v | |
| ROOFLEY PTY LTD |
APPLICATION NUMBER: MH031-09
| MATTER TYPE: | Other Civil Dispute Matters |
HEARING DATE: 27 August 2010
HEARD AT: Brisbane
| DECISION OF: | Mr KR Geraghty |
DELIVERED ON: 14 October 2010
DELIVERED AT: Brisbane
ORDERS MADE: The application is dismissed.
| CATCHWORDS : | Whether a structure consisting of a caravan with extensive added structures is a manufactured home pursuant to s.10 of the Manufactured Homes (Residential Parks) Act 2003; |
s.10 Manufactured Homes (Residential Parks) Act 2003; s.7 Residential Tenancies and Rooming Accommodation Act 2008;
Limbada & Ors v Ahearn & Ors [2005] Q.D.C. 164; Curyer H & J v Monte Carlo Caravan Park Pty. Ltd. [2006] QCCT MH 3;
Monte Carlo Caravan Park Pty. Ltd v Curyer & Curyer [2006] QCA 363; Walter Elliott Holdings Pty. Ltd. v Logan City Council [2009] QPEC 67
APPEARANCES and REPRESENTATION:
| APPLICANT : | Mr M Black of Counsel by direct briefing (pro bono) |
| RESPONDENT: | Mr B.W.J. Kidston of Counsel instructed by Craig Ray and Associates |
REASONS FOR DECISION
Introduction
The applicant has lived in a caravan park owned by the respondent for some twelve years. The premises in which he was living comprise (according to the Statement of Claim) what was originally a 24 foot caravan with extensive added structures constituting a three bedroom home.
On 15 September 2009 the respondent served the applicant with a notice to leave the park pursuant to the provisions of the Residential and Rooming Accommodation Act 2008.
The applicant contends that the premises in which he lives constitute a “manufactured home” pursuant to the Manufactured Homes (Residential Parks) Act 2003 (“the Act”). On the other hand, the respondent contends that the caravan and structures that surround the caravan are not a manufactured home.
The applicant seeks an order that the respondent issue a Form 2 Site Agreement as per the Act; whereas the respondent says that the applicant has no right to request such an agreement because the applicant does not have a manufactured home. In other words, the question of jurisdiction of this Tribunal is raised.
Further, there is an issue as to whether this Tribunal has jurisdiction when there is no written site agreement in existence pursuant to s.14 (and s.25) of the Act.
Relevant Legislative Provisions
Section 10 of the Act provides
What is a manufactured home
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.
The reference in this section to “caravan” leads to reference to s.7 of the Residential Tenancies and Rooming Accommodation Act 2008 (“the RTRA Act”) which relevantly provides:
“7 Caravan
(1) A caravan is a trailer—
(a) designed principally for residential purposes; and
(b) designed to be attached to and towed by a self-propelled vehicle; and
(c) that, as originally designed, was capable of being
registered under a law of the State about the use of vehicles on public roads.”
Section 14 of the Manufactured Homes (Residential Parks) Act 2003 provides:
“14 What is a site agreement
A site agreement is an agreement between a park owner and a home owner that--
(a) provides for –
(i) the rental by the home owner of particular land in a residential park; and
(ii) the positioning on the land of a manufactured
home; and
(iii) the home owner's non-exclusive use of the park's common areas and communal facilities; and
(b)includes provision about anything else required or permitted by this Act to be in the agreement.
Example for paragraph (b)--
provision about how site rent may be increased.”
Section 25 of the Manufactured Homes (Residential Parks) Act 2003 provides:
25 Written agreement
(1) The park owner for a residential park must ensure a site agreement is written to the extent, and in the way, required by this section.
Maximum penalty--200 penalty units
(2) The agreement must include the standard terms, and any special terms, of the agreement.
If, for a standard term of a site agreement to be effective, the term requires stated information to be included in it, the agreement is taken to include the standard term only if the information is properly included.
Example of information –
the names of the parties and a description of the site
(4) The agreement must—
(a) be written in a clear and precise way; and
(b) precisely identify the site; and
(c) state each party's name, address and any telephone number; and
(d) state the following –
(i) the site rent and other charges payable under the agreement;
(ii) when the site rent and other charges are payable and how they must be paid;
(iii) how and when the site rent may be q varied; and
(e) state the maximum number of persons who may reside on the site the subject of the agreement; and
(f) be signed by the parties; and
(g)comply with any other requirement prescribed under a regulation.
(5) The park owner must pay the costs of preparing the agreement.
(6) Also, the park owner must keep a copy of the agreement until 1 year after the agreement is terminated.
Maximum penalty - 20 penalty units
(7) Nothing in this section affects the enforceability of a site agreement that is not written.
Note –
Section 151 deals with relevant agreements, under the repealed Act, in force immediately before the commencement of section 148 that are not in writing.Section 140 the Manufactured Homes (Residential Parks) Act 2003 provides:
Site Agreement Dispute
If there is a site agreement dispute, either party to the dispute may apply to the Tribunal for an Order, and the Tribunal may make any order it considers appropriate, to resolve the dispute.
The Act has a schedule setting out a dictionary. In that schedule, “site agreement dispute” is defined as meaning “a dispute between the parties to a site agreement about the parties’ rights and obligations and the agreement or this Act.”
The Evidence
The applicant provided a written statement which was tendered as exhibit 5; he also provided a second statement which was tendered and became exhibit 6. Mr McKegney was cross-examined as to his evidence.
The applicant also relied upon a report of a retired builder, Mr David Patan, and that report (dated 10 July 2010) was tendered as exhibit 7.
For the respondent, a statement of the respondent’s operations manager, Mr Hamish Baird, was tendered and Mr Baird was not required for cross-examination. Further, the respondent tendered a report from mechanical engineer, Mr Garry Bow, dated 29 June 2010 with respect to the caravan; this report became exhibit 1 and Mr Bow was not required for cross-examination. The respondent also tendered a report from the building and property consultant, Mr Keith Thomas, which became exhibit number 4; the applicant did not require Mr Thomas to be cross-examined.
Finally, the respondent tendered a report from structural engineer, Mr Roy Saint, dated 28 April 2010. This report became exhibit number 2. Mr Saint was cross-examined.
The Issues
With respect to s.10 of the Act, there was no dispute that the premises in which the applicant lives are a structure and that those premises have the character of a dwelling house. However, it was strongly an issue as to whether the structure was “other than a caravan”; and whether the structure was designed to be able to be moved from one position to another; and whether it was permanently attached to land or not.
The Facts
I proceed to set out the facts with respect to those issues. I state at the outset that I accept the evidence of Mr Saint in preference to that of Mr Patan. I accept Mr Saint’s report because of his much greater expertise; and the much greater thoroughness of his report and his better understanding of the issues. Mr Paton did not address the important issue of whether the structure was designed to be able to be moved. I make it clear that I do accept that Mr Patan was an honest witness who gave his evidence according to his understanding of the issues involved, and I was not deterred from that conclusion by the various issues raised in cross-examination to the effect that Mr Patan had a bias in favour of homeowners by reason of him providing a free “residential park homeowners advocacy service” or that he had some vested interest in the outcome on tenuous ground that he himself owned a manufactured home.
Mr McKegney’s statement (exhibit 5) indicates that the original caravan has been occupying the site for 24 years. He says that the original caravan forms a very minor part of the overall home and has become only a substitute for a third bedroom in a three bedroom home. He describes the caravan as being the nucleus of the structure which is now his home.
Mr McKegney further says that the whole rear section of the original caravan which would have contained the number plate, number plate lights and stop lights and turning indicator lights has been completely removed and opens up into part of the dwelling. The axles of the caravan do not remain in place. They still exist but are unattached to the caravan and are lying on the ground where they have been for many years and are rusting. Similarly, the hubs, brake drums, and wheels have also lain on the ground for many years and are rusting. He says that the springs and the mounting point for the springs do not exist and that there are no tandem mounting shackles and no tow bar.
Mr McKegney says that the structure is fixed in places to a concrete slab to prevent wind lift which is part of the Australian Building Code; and that the posts are set into steel stirrups which are bolted through the timber post positioned in the stirrups and can be unbolted and removed; the stirrups are set into the concrete pad.
Mr Saints’ report (exhibit 2) says that there are an amalgamation of structures under a roofed area, namely a carport; a laundry; a living area; a kitchen; a bathroom; a bedroom 1; a caravan (bedrooms 2 and 3); a verandah; and a storage area.
Nothing in Mr Saints’ report negates the applicant’s statements with respect to the caravan. However, he says that a replacement drawbar could be attached; that in his opinion (on the assumption that part of the back of the caravan had been removed – he was unable to observe that himself – the alteration was not substantial and Mr Saint did not consider that it compromised the structural integrity of the caravan such that it could no longer be towed.
The annex side of the caravan had not been removed but had been framed and sheeted over with fibrocement sheet (or a similar product) and plaster set so as to line the living area. It appeared as though this sheeting had been attached to the outside of the caravan wall. This sheeting could be detached from the caravan, if one was desirous of removing the caravan and this detaching would not compromise the structural integrity of the caravan such that it could no longer be able to be towed.
Mr Saint also referred to the caravan having an adjustable screw stabiliser support off the chassis at the rear of the caravan; and additionally the caravan was supported by “dry stacking”. By this he meant a number of blocks or bricks that were stacked together but not held together by mortar and simply sat on the ground. The stack was able to be disassembled and removed without the need for demolition and could be re-assembled elsewhere. Accordingly, given the use of stabilizers and dry stacking, the caravan element of the structure was not permanently attached to the land.
Mr Saint was of the opinion that the caravan was designed to be attached to and towed by a self propelled vehicle and further in his opinion, the minor modifications or minor disassembly of the caravan did not constitute such fundamental changes to the caravan that it could be said that the purpose for which the caravan had been designed had been altered.
Mr Saint was also of the opinion that he caravan’s structural integrity had not been compromised. The roof was not supported by or attached to the caravan. There was no reason that the axle set up could not be repaired or replaced; that a drawbar, light assembly or number plate could not be fitted; that the sheeting to the annex side of the caravan could not be removed; and the front wall of the verandah could be removed and the front section of the roof could be temporarily lifted and that the caravan could then be towed away. If that was done, even though the sides where the caravan was located would be open, the residual structure would not collapse and would have much the same structural integrity as it presently does.
The roof itself was supported by timber posts on one side which were attached to stirrups which were concreted into the ground. Elsewhere, the roof was supported by perimeter walls surrounding the living area. This part of the roof and walls were lined and plaster finished, with cornices.
In Mr Saint’s opinion, the roof was not designed in such a way that it could be moved from one place to another. The only way it could be moved would be to almost completely dismantle the structure and demolish the entire structure; to disconnect the post from the slab or stirrups as required; to pour a new slab and set new stirrups in concrete and dig new holes for the posts on the caravan side; and to assemble the structure again as if it was being assembled for the first time together with the roof element. Mr Saint said that it would be expected that if the roof element was designed to be moved, it would have been constructed in such a way that it could be disassembled into a number of large parts/panels that could be reassembled without the need for total demolition and reconstruction. The roof element was not built in this fashion.
There is a storage room which was constructed on a concrete slab. This storage room was not designed so that it could be moved from one place to another and it could not support itself without the assistance of the balance of the structure. To move it, it would be necessary to almost completely dismantle it; to pour a new slab under some other roof and to reassemble it as if it was being assembled for the first time. Again, he would have expected the storage room to be constructed in such a way that it could be disassembled into a number of large parts/panels that could be reassembled without the need for total demolition and reconstruction, if it had been designed to be moved. The storage room was not built in this fashion. Further, it would have been expected to have a floor that could be relocated and the slab could not be relocated.
I do not think it is necessary to go into the detail of every element of the structure, but with respect to the carport/laundry, Mr Saint again says that it was not designed to be moved in the same way as the storage room and roof were not designed to be moved; and that again this slab could not be relocated. The bedroom number 1 again was in the same situation; the bathroom was in the same situation and it was also built on a concrete slab which could be removed and further the concrete slab had tiling which formed the floor of the bathroom. Further, the kitchen and verandah were similarly not designed to be moved from one place to another.
Mr Saint then dealt with the attributes of structures which were designed to be moved, saying that they should be constructed in such a way as to be capable of being dismantled into parts of sections that can be conveniently and cost effectively transported and reassembled; it would be expected that if part or all of the structure (excluding the caravan) was designed to be moved, it would have a substantial chassis (with or without wheels) that would provide the associated with it being moved. The structure (save for the caravan element) did not have such a chassis. Further, structures designed for relocation were commonly fitted with lifting points which the structure did not have; also, structures designed for relocation commonly had skid plates forming part of the chassis which were used to skid or slide the structure into position when it was being moved about and the applicant’s structure had no such skid plates. Further, structures designed for relocation almost invariably had a floor that could be moved with the structure, that floor being usually supported with dry stacking, combined with a system of chains or turnbuckles attached to the chassis of the structure at one end and attached to a “dead man” or “cone pad” (a permanent mass of concrete set into the ground with an attachment to allow for chains or turnbuckles to be attached and detached) at the other end. The applicant’s structure did not employ any of these methods (leaving aside the caravan). The structure was constructed on a concrete slab the same way a conventional house was built and to the same design and was no more designed to be relocated than a conventional home constructed upon a slab.
Mr Saint also referred to the situation that cyclone bolts had been utilised as part of the foundation system for the structure and he said that given the use of a slab and cyclone bolt foundation system for the structure, in his view a foundation system that permanently attached the structure to the land had been utilised.
Mr Keith Thomas (a building and property consultant and chartered builder), in his report (exhibit 4) came to the same conclusion as Mr Saint, that is that after analysing all the different elements of the applicant’s home, all the structures other than the caravan were of a conventional house building design and construction and that none of the structures were designed for relocating from one location to another and would require demolition before relocating.
Mr Gary Bow, a mechanical engineer, provided a report (exhibit 1). This dealt with the caravan. Again, his report did not significantly differ from the applicant’s description of the caravan and at the present condition. His report was directed to s.7 of the RTRA Act and he concluded that the caravan was designed, and remains, principally for residential purposes; that it was designed to be attached to and towed by a self-propelled vehicle; and that as originally designed, the caravan was capable of being registered for use on public roads in Queensland and other states in Australia.
Mr Patan’s report (exhibit 7) says that the applicant’s home consists of three removable sections being the front verandah, the original caravan, and one complete unit containing the main living area and one bedroom. Mr Patan notes that the Australia Building Code requires that all structures be secured to a concrete or solid base and that the applicant’s home is no exception. He states that all bottom plate tie downs are accessible by way of a simple cut out in the lower plasterboard, any bolts to the bottom plate and bolts joining the cyclone rods can be removed, and on completion of removal and repositioning of the structure, the section of the plasterboard can simply be replaced. He further says that even if the caravan was removed from the structure, another section of the home could be constructed to form other room or rooms (sic). He notes that a section of the floor remains unsecured to gain access to the sub-structure for unfastening which he says establishes that the structure is relocatable. Mr Patan concludes by saying that any manmade structure can be relocated and that it all depends on the methodology applied.
Observations and Findings
I propose to refer firstly to the first requirement of s.10 of the Act namely that a manufactured home is a structure other than a caravan. I note that the definition of “caravan” in the dictionary schedule to the Act refers to the RTRA Act definition in s.7. I further note that the only part of s.7 of the RTRA Act that is relevant is sub-section 1 and I refer in this regard to Limbada & Ors v Ahearn & Ors [2005] QDC 164. It seems to me that the necessary threshold for determining what a caravan is pursuant to s.7 of the RTRA Act is whether it is a trailer. It seems to me that in the context of the present case, if the “caravan” element of the applicant’s home is not a trailer, then the issues of design do not come into it. I note that I invited submissions from Counsel for both parties on this issue but did not receive any. None of the evidence adduced in the hearing related to this issue either.
In Limbada’s case, McGill DCJ noted that the term “trailer” was not defined in the then Residential Tenancies Act. In his opinion, the term had its ordinary meaning, namely something which has its own wheels by which it can be towed by a vehicle along the road, but is not self propelled.
This definition was adopted in Curyer H & J v Monte Carlo Caravan Park Pty. Ltd. (2006) QCCT MH3. In that case, there was a caravan section with a constructed annex (to the caravan) incorporating a lounge sitting room and front porch. The caravan had axles and wheels and a draw bar for towing purposes which the Tribunal thought would bring it within the ordinary meaning of the term “trailer”. However, the expert evidence before the Tribunal was that “the building consisted of two structures dutifully joined to form a manufactured home” and that the first section was “a mobile home caravan which due to the annex construction has been altered an amended”. An annex had been affixed to the north side wall of the caravan and the expert concluded that “given the modification of incorporating large structural openings in this north wall, the removal (demolition) of the annex would so render this caravan non-structural for removal by towing in the normal manner.”
On this basis, the Tribunal was satisfied that the caravan was no longer an integral section and that it and the annex must be seen as the one structure and therefore it was no longer a trailer in the ordinary use of that word.
This decision went on appeal firstly to the District Court and then to the Queensland Court of Appeal reported as Monte Carlo Caravan Pty Ltd v Curyer & Curyer [2006] QCA 363.
The Court of Appeal noted that the subject premises comprised a section which was originally a caravan, and other sections which included an annex and a deck. The annex was attached to the side of the caravan and was tied down by chains to stakes in the ground. Large structural openings had been made in the north wall of what was the caravan so that the removal of the annex would render the caravan non-structural for towing. The Court further noted that the Tribunal had found as a fact that the annex and deck had been integrated into one structure and that this structure did not answer the definition of a caravan in the Act.
The court went on to say that the Act did not invite a notional dismantling of the structure in question, nor did it require some form of historical enquiry into the provenance of the components of the structure … it was clear from the language of the statute that the Act operated by reference to the structure as it exists on site when the effect of the legislation falls to be considered. The court went on to say that the appellant could not surmount the obstacle that the Tribunal had found the home to be an integrated residential structure and that considered as one structure it did not meet the definition of a caravan within the meaning of the Act. The court cited the learned District Court Judge as holding that the structure “is no longer a trailer at all because of what has happened to it … functionally it has become one structure …” and that this finding of fact was fatal to the appellant’s argument.
Obviously much of the evidence in the present case was directed towards establishing that the alterations to the “caravan” in this case (including the removal or partial removal of the rear panel) did not render it non-structural for towing; and as to whether the “caravan” in this case and its attached annexures were integrated into the one structure.
However, in my opinion, the “caravan” cannot be regarded as a “trailer” when it does not have axles or wheels and does not have a draw bar for towing purposes.
I accordingly find that the “caravan” is not a trailer and accordingly, the issues of whether it was designed to be attached to and towed by a self-propelled vehicle and whether as originally designed it was capable of being registered for use on public roads, become immaterial. I therefore find that the applicant’s premises are a structure other than a caravan.
In making the aforesaid findings, I take into account the dictate of the Court of Appeal that the Act operates by references to the structure as it exists on site when the effect of the legislation falls to be considered. The applicant’s “caravan” as it exists on site is not a trailer, and whether it could be changed into a trailer by the carrying out of various repair works and replacement of axles etc is not the point.
It is not in issue that the applicant’s premises have the character of a dwelling house, so the issues to which I now turn are ss.10(b) and (c) of the Act namely whether the structure is designed to be able to be moved from one position to another; and is not permanently attached to land.
It is undeniable that most if not all structures could be moved from one position to another – it is only a matter of expense and engineering method. In particular, it may be noted that a wooden Queenslander type home constructed on stumps can be relatively easily moved from one position to another.
It is clear therefore that s.10(b) of the Act is drafted to avoid this situation (i.e. that structures can be moved) so that the crux of the section is whether the structure is designed to be able to be moved.
Submissions on behalf of the applicant in reality centered upon the fact that the applicant’s premises could be moved and that it was immaterial as to the difficulty or expense that might be involved in moving it. Reliance was placed on Walter Elliott Holdings Pty Ltd v Logan City Council [2009] QPEC 67. This case involved a definition of a “relocatable home” in the applicable legislation as being “any dwelling unit that is designed and constructed to be moved in one or more pre-fabricated sections from one position to another and is not permanently attached to a site other than for the provision of services”.
In my opinion this definition does have useful similarities to the s.10 definition, but with the added reference to “pre-fabricated sections”.
Wilson DCJ (as he then was) found that the definition quoted “does not specify a particular standard of design and construction or a particular method of movement; nor what features must be found in the unit to assist its movement or any standard to be achieved in that process. Rather it simply requires design and construction in a way which permits movement in one or more pre-fabricated sections, as opposed to design and construction of an entire and fixed and immoveable structure”.
I would agree that the definition in s.10(b) does not require any particular method or standard, and does not invite any comparison as to relative ease of carrying out the move.
However, the fact remains that the structure must be designed to be able to be moved from one position to another and from the evidence which I accept (that of Mr Saint and Mr Thomas) it is quite clear that there is no way in which the applicant’s structure could be categorised as being designed to be able to be moved from one position to another. For example, it is conceded by the applicant’s Counsel that the floor of the structure could not be moved, and I agree with the submission by Counsel for the respondent that the use of the term “structure” in s.10 does not mean part of a structure, but implies that the whole structure can be moved. Obviously a whole can of worms would be opened if the section meant that as long as part of a structure could be moved, the structure would be a manufactured home.
I also find, on the basis of the evidence that I accept, that the structure is permanently attached to land. This is almost a necessary corollary of the requirement that the structure be designed to be able to be moved from one position to another. In my opinion, the fact that the structure could be moved (or at least part of it) does not require a finding that therefore the structure is not permanently attached to land. The same issue arises in respect of the question as to whether a building has fixtures or fittings, with fixtures having to stay with the building if it is sold, whereas fittings can be removed before sale. The test applied in this context is one of intention, as to whether it was intended that the item be permanently fixed to the building even though it could be removed or whether the intent was to affix the item only for some temporary purpose. Generally, see Land Law of Peter Butt 6th Ed 2010 at Chapter 3, where the circumstances to consider include the degree of annexation to the reality; the function to be served by the annexation and whether the item can be removed without substantial damage to itself.
In my opinion, it is clear from the evidence of Mr Saint and Mr Thomas that the intention was to permanently attach the structure to land when the applicant’s premises were constructed, and that the structure cannot be removed without substantial damage to itself.
In the end result, I am not satisfied that the applicant’s structure was designed to be able to be removed from one position to another; nor am I satisfied that the structure is not permanently attached to land. Therefore the applicant’s home is not a manufactured home in terms of the definition of s.10 of the Act and this Tribunal therefore does not have jurisdiction.
Since I have concluded that this Tribunal has no jurisdiction in the matter because the applicant’s premises are not a manufactured home, it becomes unnecessary for me to determine the question of whether this Tribunal has jurisdiction when (apparently) no site agreement as defined in s.14 of the Act exists.
Order
The Application is dismissed.
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