Nestle Inn Brisbane Operations Pty Ltd t/as Bayside Tingalpa v The Estate of the Late Dennis Novak
[2024] QCAT 281
•19 July 2024
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Nestle Inn Brisbane Operations Pty Ltd t/as Bayside Tingalpa v The Estate of the Late Dennis Novak [2024] QCAT 281
PARTIES:
NESTLE INN BRISBANE OPERATIONS PTY LTD T/AS BAYSIDE TINGALPA (applicant)
v
THE ESTATE OF THE LATE DENNIS NOVAK (respondent)
APPLICATION NO/S:
OCL037-23
MATTER TYPE:
Other civil dispute matters
DELIVERED ON:
19 July 2024
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Member Deane
ORDERS:
1. It is declared that the Estate of the late Dennis Novak has abandoned the manufactured home situated at Bay 126 Bayside Tingalpa on 19 July 2024.
2. It is declared that the site agreement between Nestle Inn Brisbane Operations Pty Ltd t/as Bayside Tingalpa and the Estate of the late Dennis Novak is taken to be terminated with effect from 19 July 2024.
3. Nestle Inn Brisbane Operations Pty Ltd t/as Bayside Tingalpa is authorised to sell the home situated at Bay 126 Bayside Tingalpa and any personal effects of the late Dennis Novak in the home, on the site or Bayside Tingalpa, on the condition that:
(a) Nestle Inn Brisbane Operations Pty Ltd t/as Bayside Tingalpa have the home and personal effects valued by an independent valuer and must not sell the home and personal effects for less than the valuation; and
(b) the proceeds of sale are applied in accordance with section 54(2) of the Manufactured Homes (Residential Parks) Act (Qld) 2003.
4. The Estate of the late Dennis Novak is to pay Nestle Inn Brisbane Operations Pty Ltd t/as Bayside Tingalpa the termination payment, being all sums payable to Nestle Inn Brisbane Operations Pty Ltd t/as Bayside Tingalpa under the site agreement up to 19 July 2024, in the amount of $44,366.71.
5. The Registrar is to send a copy of this decision and reasons to the Public Trustee of Queensland.
CATCHWORDS:
ENVIRONMENT AND PLANNING – PLANNING – DEVELOPMENT ASSESSMENT AND CONTROL – ASSESSMENT AND CONTROL OF PARTICULAR MATTERS – RESIDENTIAL – CARAVAN PARKS AND MOVEABLE DWELLINGS – whether manufactured home abandoned – whether park owner entitled to termination payment – whether park owner should be authorised to sell home and personal effects – whether park owner should be authorised to sell to a prohibited person – whether park owner is entitled to after termination rent
Human Rights Act2019 (Qld), s 8, s 9, s 11, s 13, s 24, s 25, s 31, s 48
Manufactured Homes (Residential Parks) Act2003 (Qld), s 4, s 8, s 11, s 26, s 27, s 32, s 52, s 53, s 54, s 55
Queensland Civil and Administrative Tribunal Act2009 (Qld), s 3Succession Act1981 (Qld), s 45
APPEARANCES & REPRESENTATION:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld) (‘QCAT Act’)
REASONS FOR DECISION
At a directions hearing on 19 July 2024 I gave my decision in this matter. These are my reasons for decision.
Nestle Inn Brisbane Operations Pty Ltd trading as Bayside Tingalpa is the park owner of Bayside Tingalpa under the Manufactured Homes (Residential Parks) Act (Qld) 2003 (‘the Act’).[1] Mr Dennis Novak, a home owner, entered into a site agreement with a former park owner in 2010.[2] A successor in title of the park owner under a site agreement obtains the benefits and the obligations under the site agreement.[3] A copy of the site agreement was attached to the Application.[4] The park owner seeks an abandonment order pursuant to sections 52, 53 and 54 of the Act.
[1]Manufactured Homes (Residential Parks) Act (Qld) 2003, s 11 (‘the Act’).
[2]The Act, s 8(a).
[3]Ibid, s 27.
[4]Application for Abandonment filed 20 June 2023 (Application).
The orders sought are:
(a)a declaration that the Estate of Mr Novak abandoned the manufactured home as and from the date of the Tribunal’s order;[5]
(b)to authorise the park owner to sell the manufactured home and personal effects in the manufactured home, on the site and in the park including to authorise the park owner to sell the home or personal effects to a prohibited person with the proceeds to be applied in accordance with section 54(2) of the Act;[6]
(c)the Estate of Mr Novak to pay to the park owner all sums payable to the park owner under the site agreement up to the day the site agreement is taken to be terminated;[7]
(d)the park owner is entitled to receive after-termination rent from the day the site agreement is taken to be terminated to the day the manufactured home and personal effects are sold.[8]
[5]The Act, s 52(3).
[6]Ibid, s 52(6)(a) and s 53(5).
[7]Ibid, 52(6)(b), referred to as a termination payment.
[8]Ibid, s 55(2).
The evidence is that:
(a)Mr Novak died on 5 January 2020. A copy of his death certificate is attached to the Application.
(b)the park owner became aware of his death on 10 January 2020 from Mr Novak’s neighbour.
(c)despite the passage of time and enquiries the park owner has been unable to locate any next of kin and no one has claimed an interest in Mr Novak’s manufactured home or personal effects, including a motor vehicle and boat, which remain on the site and in the park.
Under the Act, relevantly, a home owner is a person who owns a manufactured home that is positioned on a site in a residential park under a site agreement[9] and upon the death of such a person their personal representative or beneficiary of their estate.[10]
[9]Ibid, s 8(1)(a).
[10]Ibid, s 8(1)(c).
A home owner’s right under a site agreement to position a manufactured home on a site continues until the agreement is terminated.[11] A site agreement may only be terminated under Part 6 or Part 8 of the Act.[12]
[11]Ibid, s 26.
[12]Ibid, s 32.
The property of a deceased person devolves to his or her executor or if there is no executor the Public Trustee of Queensland.[13] There is evidence before me that probate for any will made by Mr Novak has not been sought and the Public Trustee of Queensland is not acting in relation to Mr Novak’s estate and does not wish to be heard in relation to this application. While the property of a deceased person vests in the public trustee it is not required to act in the administration of the estate.[14]
[13]Succession Act1981 (Qld), s 45(1).
[14]Ibid, s 45(6).
Should an abandonment order be made?
I declare the Estate of the late Dennis Novak, the home owner, has abandoned the home as at 19 July 2024. The site agreement is therefore terminated as at 19 July 2024.[15]
[15]The Act, s 52(4)(b); Site Agreement, clause 9.2.
The park owner under a site agreement may apply for an abandonment order if it reasonably believes the homeowner has abandoned the manufactured home positioned on the site.[16]
[16]Ibid, s 52(1).
In deciding whether to make the abandonment order there are a number of matters to which the Tribunal may have regard.[17] To the extent relevant I consider them. The evidence is that the site rent payable under the agreement is unpaid since 1 January 2020.[18] A copy of the park owner’s site rent ledger is before me, it shows that as at 14 June 2023 site rent in the amount of $32,444.01 was owing and accrues fortnightly at the rate of $389.74. The park owner’s representative says to his knowledge the home has been unoccupied since Mr Novak was taken to hospital on 25 December 2019 and has been neglected since Mr Novak passed away.[19] Copies of photographs of the home have been attached to the Application. The photographs show that the home owner’s personal effects have not been removed from the home.[20] The park owner contends that the site agreement has not yet been terminated.[21] The park owner’s representative says that the park owner checks Mr Novak’s mailbox on occasions, that Mr Novak does not receive mail but junk mail is not being collected.[22] The evidence is that Mr Novak’s neighbour reported that she had transported Mr Novak to hospital and that he had died.[23] The park owner says that it has unsuccessfully enquired of Mr Novak’s neighbours about any next of kin known to them. The evidence is that electricity charges payable under the site agreement are unpaid since 1 December 2019. A copy of the park owner’s ledger is before me, it shows that as at 1 June 2023 the amount of $731.59 was owing.[24] The park owner’s evidence is that appliances in the home owner’s home remain connected. The evidence is that Mr Novak was cremated and that no next of kin claimed his ashes.[25]
[17]Ibid, s 52(5).
[18]Ibid, s 52(5)(a).
[19]Ibid, s 52(5)(b).
[20]Ibid, s 52(5)(g).
[21]Ibid, s 52(5)(c).
[22]Ibid, s 52(5)(d).
[23]Ibid, s 52(5)(e).
[24]Ibid, s 52(5)(f)
[25]Ibid, s 52(5)(h).
I am satisfied that the manufactured home and personal effects are abandoned.
Other orders
In conjunction with the abandonment order the Tribunal may authorise the park owner to sell the home and may impose conditions[26] and may order the home owner to pay the termination payment, being any amount payable up to the date of termination.[27]
[26]Ibid, s 52(6)(a).
[27]Ibid, s 52(6)(b).
Should a termination payment order be made?
I find that the Estate of Mr Novak is to pay the park owner the termination payment, being an amount of $44,366.71.
The park owner’s representative gave evidence that site fees owing to 14 June 2023 were $32,444.01 and electricity charges owing to 1 June 2023 were $731.59. I accept that evidence. I also accept that site rent and electricity charges have continued to accrue up to the termination date. I directed the park owner to file evidence of the amount owing under the site agreement up to 19 July 2024. The park owner filed a further site rent ledger as at 10 July 2024 but no further evidence in relation to electricity charges owing. As I understand it the ledger shows that site rent is payable fortnightly in advance.
I find that the Estate of Mr Novak is to pay the park owner the termination payment as at 19 July 2024 in the amount of $44,366.71, calculated as follows:
(a)site rent as at 26 June, 2024 (for fortnight ending 9 July 2024) $43,356.73
(b)plus rent 10 July – 19 July, 2024 $ 278.39[28]
(c)plus electricity $ 731.59.
[28]$389.74/14 x 10 days
Should the Tribunal authorise the park owner to sell the home and personal effects?
I am satisfied that the park owner ought to be authorised to sell the home and personal effects of the Estate of Mr Novak in the home, on the site and in the park to recover amounts owing to it under the site agreement because no one has sought to claim them, amounts under the site agreement have accrued to the park owner and there appears no other way the park owner is able to recover any amounts owing.
Should any conditions be imposed?
I find that the park owner must have the home and personal effects valued by an independent valuer and must not sell the home and personal effects for less than the valuation.
There is no evidence before me as to the value of the home, vehicle, boat or other personal effects so I am unable to specify the minimum sale price.
Should the Tribunal authorise the park owner to sell to a prohibited person?
I am not satisfied that the park owner should be authorised to sell the home and personal effects to a prohibited person.
Section 53(4) of the Act provides that the park owner must not sell the home or personal effects to a prohibited person unless the Tribunal authorises it.[29] Prohibited person means the park owner or an associate of the park owner, which means an employee or relative of the park owner.[30] Relative is defined to include someone connected to the park owner by a spousal relationship or step-relationship.[31]
[29]The Act, s 53(4).
[30]Ibid, s 53(6).
[31]Ibid.
The park owner has not given any reason why it ought to be permitted to sell to a prohibited person.
I am not satisfied that it is appropriate to authorise the park owner to sell the home or personal effects to a prohibited person in the absence of the park owner explaining why such an order is sought. The park owner, as applicant, bears the onus of proving its entitlement to the orders sought.
Is the park owner entitled to receive after termination rent?
I am not satisfied that the park owner is currently entitled to receive after termination rent.
Section 55(2) of the Act provides that the Tribunal may make an order conferring on the park owner an entitlement to receive an amount on account of after termination rent. Section 55(3) of the Act provides that the park owner must demonstrate to the Tribunal that it has acted as soon as reasonably practicable to sell the home or personal effects and otherwise took all reasonable steps to mitigate the park owner’s loss of site rent that would have been payable under the agreement if it were still in force.
I am not satisfied that such an order should be made at this time because a precondition of such an application for after termination rent is that an amount is paid to the public trustee from the sale of the home and personal effects.[32] The sale has not yet occurred and therefore no funds have currently been paid to the public trustee. Further, in the current circumstances, there is no evidence of the matters the park owner is required to demonstrate under section 55(3) of the Act. An application for such an order is currently premature. At an appropriate time, the park owner may apply to the Tribunal for such orders.
Human Rights Act (‘HR Act’)
[32]Ibid, s 55(1)(c).
The HR Act commenced on 1 January 2020. All individuals in Queensland have human rights.[33] A human right may only be subjected to reasonable limitations.[34] The park owner did not make any submissions in relation to the HR Act.
[33]Human Rights Act2019 (Qld), s 11 (‘HR Act’).
[34]Ibid, s 13.
In deciding this application:
(a)I am not acting as a public entity because I am not acting in an administrative capacity.[35]
(b)I have interpreted statutory provisions, to the extent possible that is consistent with their purpose, in a way that is compatible with human rights.[36]
[35]Ibid, s 9(4)(b).
[36]Ibid, s 48.
I accept that this application and the determination of it potentially impacts Mr Novak’s personal representative’s rights to a fair hearing and I considered them. The Public Trustee of Queensland did not wish to be heard. Any other personal representative has not been able to be found. In coming to my decision, I have considered the documents filed.[37]
[37]Ibid, s 31.
I accept that these proceedings and my decision potentially impacts other rights, in particular property rights[38] and the right to privacy and reputation.[39] I have considered Mr Novak’s personal representative’s human rights and am satisfied that the decision is compatible with their human rights as any limitations on those rights are reasonable and justifiable.[40] Any limitation of the human rights is consistent with the objects of the Act[41] and the objects of the QCAT Act.[42]
[38]Ibid, s 24.
[39]Ibid, s 25.
[40]Ibid, s 8, s 13, s 31, s 48.
[41]The Act, s 4.
[42]QCAT Act, s 3.
0
0
4