McLaren on behalf of the Edgewater Village Home Owners Committee v Capital Four Edgewater Pty Ltd

[2012] QCAT 93

CITATION: McLaren on behalf of the Edgewater Village Home Owners Committee v Capital Four Edgewater Pty Ltd [2012] QCAT 93

PARTIES:	Mr Ian McLaren on behalf of the Edgewater Village Home Owners Committee
v
Capital Four Edgewater Pty Ltd

APPLICATION NUMBER: OCL074-11

MATTER TYPE: Other civil dispute matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Dr J R Forbes, Member

DELIVERED ON: 5 March 2012

DELIVERED AT: Brisbane

ORDERS MADE: Interlocutory application dismissed.

CATCHWORDS:

Jurisdiction of Tribunal – whether dispute concerning recreational facility a “site agreement dispute” – whether injunctive relief available

Manufactured Homes (Residential Parks) Act 2003, ss 14A, 140
Queensland Civil and Administrative Tribunal Act 2009, s 59

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

1. This an interim decision upon an issue of jurisdiction raised by the Respondent Capital Four Edgewater Pty Ltd (“Edgewater”).

2. The Applicant, for himself and 47 persons whom he represents, seek the following order:

   That the [Edgewater] replace the failed solar blanket with modern solar panels to heat the swimming pool at no cost to homeowners, who are at present already paying for a heated pool in their site fees.  Estimated cost of removal and replacement is between $4000-$5000.

3. In response[1], Edgewater says that the Tribunal lacks jurisdiction to entertain the Applicant’s claim because (a) the said pool is not a communal asset; (b) section 140 of the Manufactured Homes (Residential Parks) Act 2003 (“the Act”) does not empower the Tribunal to order parties to comply with the provisions of the Act; and (c) this Tribunal has no power to grant a mandatory injunction.

   [1]        Application for miscellaneous matters filed 3 December 2011 (“interlocutory application”).

Is the Facility One for Edgewater to Provide?

1. Edgewater says that the subject pool is not its property, and that in fact it belongs to an incorporated association known as the Edgewater Village Residents Association Inc (“the Association”).  However, irrespective of title to the pool, the question is whether Edgewater has a contractual duty to provide the Applicants with access to the facility.

2. The Act defines “common areas” as “the parts of a residential park, other than a home owner’s site in the park, that the home owner may use under a site agreement”.  The Applicants tender a certified copy of a site agreement between Edgewater, as park owner, and Ian and Mavis McLaren as prospective home owners, commencing on 31 August 2007.  There is no suggestion that this agreement has since been terminated or amended in any material way.

3. On 7 August 2007 Edgewater, as required by the Act, gave Mr and Mrs McLaren copies of six documents, including their site agreement and the Village Rules. Part 2 of the site agreement, headed “Specific Information”, reads materially as follows:

   “Facilities Details: The park owner will provide the following facilities to residents ... recreational/social facilities ... swimming pool.”  The Village Rules include this clause: “A resident, family members or guest shall not ... use the tennis court, swimming pool or other outside community amenities between the hours of 10 pm and 6 am.”

4. Accordingly it is a term of the McLarens’ site agreement that they are entitled to the use of a swimming pool, which Edgewater shall provide.

5. (I do not have access to the site agreements of the other applicants, but for present purposes I shall assume that all of them contain a term identical to the one quoted above.  Otherwise their individual standing to maintain these proceedings may be an issue at the substantive hearing.)

6. Edgewater has undertaken to provide the McLarens with swimming pool facilities.  It is not suggested that there is more than one pool on the premises.  If, as alleged by the Edgewater, the existing pool is owned by another entity, then presumably Edgewater has (or ought to have) an appropriate arrangement with that entity.  That is not a matter for the McLarens.  Their entitlement to the facility, and Edgewater’s duty to provide it, arise under the subject site agreement.

Power to Make the Order Sought?

1. The question is whether the Tribunal has jurisdiction to entertain the substantive application as a “site agreement dispute”.  (Whether it has power to make, or is disposed to make, the specific order sought is a question for the substantive hearing, rather than this interlocutory application.)

2. Materially, the Act[2] defines a “site agreement dispute” as “a dispute between the parties to a site agreement about the parties’ rights and obligations under the agreement or this Act”.  A party to such a dispute may ask this Tribunal to resolve it, by making “any order it considers appropriate”.[3]

   [2] Section 14A.

   [3] Section 140, emphasis added.

3. I am satisfied that the present dispute is a site agreement dispute within the meaning of the Act, and that, accordingly, this Tribunal has jurisdiction to deal with it. In so deciding, it is neither necessary nor appropriate to consider whether the Applicants are entitled to the particular relief sought; I express no opinion on that point.

QCAT, Mandatory Injunctions and Equitable Relief

1. Edgewater also contends that the orders being sought are in the nature of a mandatory injunction and the Tribunal does not have jurisdiction to grant injunctions.  This submission seems to be inspired by a decision of the former Commercial and Consumer Tribunal.[4]  But in that case (where it was also held that no term of a site agreement was involved)[5] it was the jurisdiction of the former Tribunal, not this one, that was in question.

   [4]        Trout & Ors v McQuillan & Ors [2009] QCCTMH 13 at [19].

   [5]        Ibid at [20].

2. The former Tribunal’s constitutional and enabling Act[6] contained no provision equivalent to section 59 of the Queensland Civil and Administrative Tribunal Act 2009. It is unnecessary to prolong this decision by quoting that section verbatim.  Suffice it to say that it explicitly authorises a judicial member of this Tribunal to grant injunctions whenever it is just and convenient to do so.  The power is not limited to prohibitive (negative) injunctions.

   [6]        Commercial and Consumer Tribunal Act 2003 (repealed).

Conclusion

1. The present dispute is within the jurisdiction of this Tribunal, and the interlocutory application should be dismissed.

Orders

1. The Respondent’s application filed on 3 December 2011 is dismissed.

2. Costs, if any, to be costs in the cause.