McKegney v Roofley Pty Ltd - [2010] QCAT 547

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] QCAT 547
Decision Date: 14 October 2010

CaseChat Overview and Summary

McKegney v Roofley Pty Ltd was a dispute heard in the Queensland Civil and Administrative Tribunal (QCAT) concerning whether a structure consisting of a caravan with extensive added structures was a manufactured home under the Manufactured Homes (Residential Parks) Act 2003. The primary issue was whether the structure, which was initially a caravan, had been so substantially modified as to no longer be considered a caravan under the Act, and thus, whether it was subject to the provisions of the Act.

The legal issues included determining whether the structure was "other than a caravan," whether it was designed to be able to be moved from one position to another, and whether it was permanently attached to the land. The court also considered the definitions and implications of a "manufactured home" under s.10 of the Act, and the applicability of s.7 of the Residential Tenancies and Rooming Accommodation Act 2008. The reasoning of the court was heavily influenced by the evidence presented by the parties, including expert reports and witness statements. The court accepted the evidence of the structural engineer, Mr. Roy Saint, over that of the retired builder, Mr. David Patan, due to Mr. Saint's greater expertise and the thoroughness of his report. The court concluded that despite extensive modifications, the structure retained the essential characteristics of a caravan, specifically its ability to be moved, and therefore it was still considered a caravan under the Act. Consequently, the structure was not a manufactured home as defined by the Act, and the provisions of the Act did not apply. The final orders of the tribunal were in favor of the respondent, Roofley Pty Ltd, affirming that the structure was indeed a caravan and not a manufactured home under the Act.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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. 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. 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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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