Miller v Regal Waters Retirement Community Pty Ltd
[2013] QCATA 167
•14 June 2013
| CITATION: | Miller v Regal Waters Retirement Community Pty Ltd [2013] QCATA 167 |
| PARTIES: | Paul Miller Sheila Miller (Applicants) |
| V | |
| Regal Waters Retirement Community Pty Ltd (Respondent) |
| APPLICATION NUMBER: | APL017-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Hon J Cullinane AM QC, Judicial Member |
| DELIVERED ON: | 14 June 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MANUFACTURED HOMES – where respondent sought to increase the site rent payable under a site agreement – where the applicants did not agree to the proposed increase – where the respondent applied to the Tribunal for an order about the proposed increase – where the Tribunal found in favour of the respondent – where the applicants seek to appeal that decision – where questions of mixed fact and law – whether leave to appeal should be granted Manufactured Homes (Residential Parks) Act 2003 (Qld), s 70(3), s 71(1)(c), s 71(10) Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, cited |
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.
REASONS FOR DECISION
This is an application for leave to appeal against a determination of the Tribunal of 12 December 2012.
The Applicants are the owners of a site at Regal Waters Retirement Community a large relocatable home park and as such amongst a number of respondents to an application pursuant to the Manufactured Homes (Residential Parks) Act 2003 as amended (the Act) by the park owner (the Respondent here) seeking an increase in site rent. Of the 202 sites in total at the park the owners of some 38 sites were the respondents to the proceedings before the Tribunal. The Applicants here are the only owners who have challenged the determination of the Tribunal.
Some question has been raised about the procedure the Applicants have adopted. In their application (which is in the form of an appeal or an application for leave) the Applicants have stated that they do not require leave to appeal. However in their outline they concede the need to obtain leave.
Section 142 of the Queensland Civil and Administrative Tribunal Act 2009 confers appeal rights against decisions of the Tribunal. Section 142(3)(b) provides:
[A]n appeal under subsection (1) on a question of fact, or a question of mixed law and fact, may be made only if the party has obtained the appeal tribunal’s leave to appeal.
The grounds of appeal raised by the Applicants are:
1.The Tribunal in determining whether the increases sought by the Applicant (here the Respondent) were, within the meaning of s 71(1)(c) of the Act, did not consider relevant facts and considered facts that were not relevant to s 71(1)(c).
2.The findings of fact made by the Tribunal cannot support the conclusion that the increases sought met the requirements of s 71(1)(c) of the Act.
3.The Tribunal made fundamental errors of fact including misnaming the Respondents (here the Applicants) to the proceedings and attributing evidence given by one Respondent to another.
It seems to me that these grounds must be regarded as concerning questions of mixed fact and law.
The relevant principles applicable to questions arising from the interpretation, construction and application of a statute are summarised in Collector of Customs v Pozzolanic Enterprises Pty Ltd[1].
[1] (1993) 43 FCR 280 at 287, 288.
Where a statute uses words according to their ordinary meaning and the question is whether the facts as found fall within those words, if it is reasonably open to hold that they do the question whether they do or not is a question of fact. See Hope v Bathurst City Council (1980)144 CLR1 per Mason J (as he then was) at 8.
The Applicants require leave which in my view there is no impediment given the somewhat ambivalent terms of the application to the Appeal Tribunal to entertain such an application.
Although there are only three grounds advanced in the application the outline goes beyond these and in some ways takes the character of a general outline such as might be expected at the earlier hearing. It will be necessary to identify those matters raised which can be regarded as falling within the scope of the grounds raised and deal with those.
The principles relating to the grant of leave need not be stated here. I adopt what was said by the Appeal Tribunal in Klooster v Sticky Fingers (Qld) Pty Ltd[2].
[2] [2011] QCATA 282 at [12]-[14].
Section 71 of the Act confers on a park owner who is not party to an agreement which provides for site rent increases to seek an increase by the process provided for therein. This requires the owner to give a notice to home owners of the proposed increase and if no agreement is reached to apply to the Tribunal for an order. The Tribunal may have regard to the various matters set out in s 70(3)(d) to (l) and may exercise the powers contained in s 71(10).
Section 71 has application where a park owner seeks an increase in site rent because it is necessary for the park owner to cover:
(i)significant increased operational costs in relation to the park, including significant increases in rates, taxes or utility costs for the park; or
(ii)unforseen significant repair costs in relation to the park; or
(iii)significant facility upgrades in relation to the park.
Here the Respondent relied upon the first of these.
Written statements by Mr Arnold were placed before the Tribunal. He is the manager and has accountancy qualifications. He prepared the monthly financial statements and other documents for the external accountant. Statements by Mr Warner the accountant of the Respondent were tendered also largely confirming Arnold’s evidence. Both these persons were called and cross-examined.
The Tribunal sets out the effect of the evidence contained in certain schedules to Arnold’s statement in paragraphs 17 to 21 inclusive of its decision. The Tribunal accepted this evidence.
It concluded at paragraph 36:
Overall, we are satisfied that the rent increase sought is due to factors which are within those allowable under section 71(1)(c), that the site rent increase is needed to maintain the viability of the park, and that the effect of the rise is fair and equitable in all the circumstances.
I turn now to the matters raised by the Applicant in support of their application challenging these findings.
The first of these grounds is that relevant matters were not considered and irrelevant matters were considered. These are not identified in the Application and it is necessary to look to the outline to do so.
In their outline the Applicants identify the irrelevant considerations. It is alleged that the Tribunal considered viability in relation to the question of whether the requirements of s 71(1) had been satisfied when it was not relevant to this but rather at the point of considering the exercise of its discretion.
There is nothing to suggest that the Tribunal in some way failed to appreciate what the requirements of section 71(1)(c)(i) were and what was relevant to discretionary considerations. Nor do I think that this subject was irrelevant to the question whether the increase was necessary to cover the increased costs.
Similarly the argument that the Tribunal in having regard to financial information for periods after 1 July 2011 erred cannot be accepted. The financial position of the Respondent up to and following that date must be relevant to the effect of the increased costs on the Respondent’s financial position.
As to the third ground whilst the erroneous reference to the name and to the identity of the witness is unfortunate there is absolutely nothing that suggests the Tribunal proceeded on the basis of any fundamental mistake which affected the outcome.
I turn now to the second ground.
The applicants have raised a number of matters going to the proper construction of s 71. These are arguably within the ambit of the second ground of appeal on the basis that the applicants contend that the matters found by the Tribunal did not fall within the Statute as the applicants contend it should be understood.
I will deal with these matters on that basis.
In paragraphs 11 and 12 of their outline the Applicants contend for a construction of s 71(1)(c) which would require exceptional circumstances. There is nothing in the terms of the section or the scope and purpose of the Act generally to support such a contention.
The same can be said of the argument that s 71(1)(c) should be given a restrictive interpretation The subsection is to be construed according to the ordinary and natural meaning of the language used.
The respondent advanced a case based upon increased costs of insurance premiums, council rates (including water and sewerage charges) and electricity during the previous two years. The Applicants argue that it is not open to an owner to choose some costs only and the matter is to be considered by reference to total costs. It is contended that costs “were stable and in some instances had decreased.”
This latter assertion is contrary to the evidence placed before the Tribunal in the written statements of the two accountants.
The language of s 71(1) makes it clear that it is not necessary that total costs have to be the basis of the claim. The costs relied upon were identified and accepted by the Tribunal.
Again the evidence accepted clearly justified the finding that the costs were “significant.”
The Applicants also advanced an argument that the term “necessary” required proof that the increase is necessary for the continuation of the park. The language of the sub-section is clear. What has to be shown, as the Tribunal held, is that the increase sought is necessary for the park owner to cover the costs nominated.
Some other arguments are contended for but they cannot be regarded as falling within the ambit of the second ground and in any case they are without any merit. The matters raised do not warrant the grant of leave.
The application for leave to appeal is refused.
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