Murchison & Gentry v Surtie Enterprises Pty Ltd t/a Greenbank Gardens

[2010] QCAT 429

CITATION: 

PARTIES:

Murchison & Gentry v Surtie Enterprises Pty Ltd t/a Greenbank Gardens [2010] QCAT 429

Carol Murchison and Janice Gentry

v

Surtie Enterprises Pty Lt t/a Greenbank Gardens

APPLICATION NUMBER:   MH002-09

MATTER TYPE: Other civil dispute matters

HEARING DATE:     Decision on the papers

HEARD AT:  Brisbane

DECISION OF: Peta Stilgoe

DELIVERED ON: 2 September 2010

DELIVERED AT:      Brisbane

ORDERS MADE:

Application to strike out the counterclaim allowed. Application dismissed.

CATCHWORDS :  Application to strike out counterclaim – where issue decided in related proceedings

APPEARANCES and REPRESENTATION (if any):

This matter was heard on the papers in accordance with section 32 of the

Queensland Civil and Administrative Tribunal Act 2009

REASONS FOR DECISION

1. Ms Murchison and Ms Gentry have been engaged in a long running dispute with Surtie Enterprises Pty Ltd (“Surtie”). Neither Ms Murchison nor Ms Gentry has ever signed a licence agreement with Surtie. They say that they will not sign an agreement unless it is amended. Needless to say, the absence of a signed agreement has been the principal source of tension between the parties.

2. The latest salvo in the dispute is an application to strike out Surtie’s counterclaim filed on 10 August 2010. It is worth setting out how the dispute has reached its current position:

a)This dispute concerned Surtie’s alleged failure to address complaints made by homeowners within 21 days of receipt. Surtie claimed that the committee was acting outside the parameters of the Manufactured Homes (Residential Parks) Act and that Ms Murchison and Ms Gentry had not complied with rule 26 of the village rules.

b)The parties came to an agreement about the way complaints would be handled and, on 11 June 2009, the Commercial and Consumer Tribunal determined that the only issue in dispute was the effect of rule 26. On 20 October 2009, Ms Spender declared that rule 26 was invalid and of no effect.

c)By order of 10 November 2009, the Commercial and Consumer Tribunal recorded that: “there remains a dispute between the applicants and the respondent concerning their site agreements. The applicants decline to sign the agreements given to them and require amendment to the agreements before they will sign them.”

d)The parties participated in a compulsory conference on 27 May 2010. The dispute was not resolved.  At a directions hearing on 2 August 2010, Surtie was directed to file and serve an amended counterclaim. The amended counterclaim seeks declarations as to:

i)      the terms of the site agreement between Ms Murchison and Ms Gentry on the one hand and Surtie on the other;

ii)    that Ms Murchison and Ms Gentry sign and provide to Surtie a signed copy of the agreement;

iii)   in the alternative, that Ms Murchison and Ms Gentry be directed to remove their home and vacate the park;

iv)   if the tribunal does not have jurisdiction to order in terms of paragraphs i) or ii) above, a determination of whether they hold a valid licence and, if so, the terms of that licence.

1. In the meantime, the parties were also involved in separate proceedings before the tribunal. On 11 June 2010, Ms Spender handed down her decision in Gentry & Ors –v- Surtie Enterprises Pty Ltd t/a Greenbank Gardens (No 3)[1]. In those proceedings, Surtie sought an order that Ms Murchison and Ms Gentry provide signed copies of the site agreement. At paragraph 26, Ms Spender said this: “In the circumstances I find that Ms Gentry and Ms Murchison’s acceptance of a Form 2 site agreement in the terms proposed by the Respondent may be implied by their conduct. I find that they are bound by a Form 2 agreement whose terms are as contained in annexure GG30 to the joint statement of Mr Surtie and Mr Bloomfield (exhibit 5).”  Ms Spender went on to find that there was nothing in the Manufactured Homes (Residential Parks) Act that permits the tribunal to order a homeowner to sign a site agreement and that, even if there was such an obligation, pursuant to the Queensland Civil and Administrative Tribunal Act the tribunal does not have toe power to enforce it by ordering that the site agreements be signed.

   [1] [2010] QCAT 254

2. Ms Murchison and Ms Gentry rely on the decision of Ms Spender in their application to strike out Surtie’s counterclaim. Surtie has responded by stating that it will consent to the counterclaim being dismissed if the tribunal will order that Ms Murchison and Ms Gentry are bound by the original unaltered agreements provided to them upon taking up the residency and are bound by such terms and conditions whether signed or unsigned.

3. The reality is, there is nothing left in these proceedings for the tribunal to decide. The question posed by Ms Murchison and Ms Gentry on 10 November 2009 has been resolved by the decision of Ms Spender. It is not necessary to revisit the facts and it is not necessary to make the declaration now sought by Surtie because Ms Spender has clearly identified the terms of the agreement that exist between the parties. So as there can be no doubt, I repeat it here: “they are bound by a Form 2 agreement whose terms are as contained in annexure GG30 to the joint statement of Mr Surtie and Mr Bloomfield (exhibit 5)” (in proceedings MH021-09).

4. If, as I should, I dismiss the counterclaim, there is nothing left of this dispute. It is time for the parties to put their differences aside, end their disputes in this tribunal and start working together. The application to strike out the counterclaim is allowed. I also dismiss the primary application of Ms Murchison and Ms Gentry.