New Concept Developments Pty Ltd v Nevin - [2013] QCAT 677

CITATION:

New Concept Developments Pty Ltd v Nevin [2013] QCAT 677

PARTIES:	New Concept Developments Pty Ltd (Applicant)
v
Peter Nevin (Respondent)

APPLICATION NUMBER:

OCL039-13

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Howe

DELIVERED ON:

18 December 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1 The site agreement between New Concept Developments Pty Ltd and Peter Nevin be terminated as and from Friday 20 December 2013;

2 Peter Nevin give New Concept Developments Pty Ltd vacant possession of the site on or before the termination day;

3 Within 30 days of the date hereof Mr Nevin pay New Concept Developments Pty Ltd site rent arrears as at the date of termination of $5,904.60 plus outstanding water charges of $14.

CATCHWORDS:

Manufactured homes – termination of site agreement – breach of term of site agreement –home owner no longer residing on site – termination – site rent arrears

Manufactured Homes (Residential Parks) Act 2003 s 38(1)(a)

Haraba Pty Ltd v Castles [2007] QCA 206

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION
Background

New Concept Developments Pty Ltd is the owner of a residential park at Burpengary called Kurrajong Sanctuary. There are in fact two parks, both run as one by New Concept, the other known as Bindawalla Gardens. Mr Nevin entered into a site agreement with the park owner in respect of site 79 Kurrajong Sanctuary on 1 March 2010 when he purchased an existing manufactured home at the site.
On that date he also signed a direct debit agreement paying his rent by automatic withdrawal from his bank account.
By an application filed 28 May 2013, New Concept sought orders from the Tribunal that Mr Nevin cease interfering with the reasonable peace, comfort or privacy of Park residents; he restore the appearance of the outside of his home to its condition before he painted it black on or about 14 March 2013 without permission; that he pay his site fees by direct debit; that he pay all site fee arrears within 21 days; and that his site agreement be terminated.
The parties attended a compulsory conference before a Tribunal Member on 19 August 2013 – or at least he attended for some part of it. He failed to attend for its duration. There is a note to that effect in the order of the Member. The Member directed that the park owner file statements of evidence and submissions by 19 September 2013, Mr Nevin file statements of evidence in reply by 21 October 2013 and the matter of the application for termination based on alterations to the home, method of rent payment and failure to pay site fees be determined on the papers.
That is the matter now before me for decision.
At the conference the park owner withdrew its application based on interference with the reasonable…

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: [2013] QCAT 677
Decision Date

CaseChat Overview and Summary

New Concept Developments Pty Ltd sought the termination of a site agreement with Peter Nevin and payment of site rent arrears. The dispute was heard and determined on the papers by Member Howe. The legal issues included whether the ground for termination had been established and whether an order for site rent arrears was appropriate. The site agreement between the parties contained a clause prohibiting the homeowner from altering the external appearance of the home without the park owner's consent. Mr Nevin painted his home black without such consent, leading to the issuance of a notice to remedy the breach. Despite the notice, Mr Nevin failed to remedy the breach. The Tribunal found that the breach was significant, considering Mr Nevin's history of objectionable behaviour towards other park residents. Therefore, the Tribunal concluded that the site agreement should be terminated. Additionally, the Tribunal ordered Mr Nevin to pay site rent arrears amounting to $5,904.60, plus an outstanding water charge of $14. The termination of the site agreement was effective from 20 December 2013, and Mr Nevin was required to give New Concept vacant possession of the site before that date.

Orders