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 peace, comfort and privacy of other park residents at the compulsory conference. It is not clear why.
Mr Nevin has not filed any material, though he had filed material on 22 July 2013, prior to the compulsory conference. The park owner filed additional material on 18 September 2013.
The Tribunal received a letter on 10 October, 2013. It said it was from Mr Nevin, New South Wales, homeless. There was no return address. The document was not signed. It was addressed generally to the Tribunal. It did not address any matter at issue in the Tribunal proceedings.
The park owner’s manager advised the Tribunal on 24 October, 2013 that it appeared Mr Nevin was no longer living in the park. Given that, he was not causing problems to residents. The park manager had been unable to contact him by telephone.
Subsequently the park manager confirmed by e-mail to the Tribunal dated 24 October 2013 that Mr Nevin had not been seen at the park since 20 August 2013. It appeared his mail had not been collected for some time. It appeared Mr Nevin had abandoned his home.
Notices to Remedy
By s 38(1)(a) of the Manufactured Homes (Residential Parks) Act 2003 a park owner under a site agreement may apply to the Tribunal for a termination order if the homeowner has contravened a term of the agreement and has failed to remedy the contravention after being given a notice by the park owner, in the approved form, requiring the homeowner to remedy the contravention within 28 days after the notice is given.
By s 38(1)(e) there is an additional ground of termination available where the home owner repeatedly interferes with the quiet enjoyment of the residential park by the park’s residents. That ground is no longer pursued by the park owner.
Strangely enough it would appear to me, from the material filed by both parties, that that latter ground is the chief complaint concerning Mr Nevin. Be that as it may, it is not relied on by the applicant as a ground for termination.
The basis of the termination order is a breach of a term of the site agreement and failure to rectify the breach following service of a Form 6 Notice to Remedy Breach giving the requisite 28 days to rectify.
Though the park owner has issued four such breach notices, those notices are only in respect of an alteration to Mr Nevin’s home visible from the outside without the consent of the park owner. No notice to remedy was given in respect of failure to pay site fees or cancellation of his direct debit payment authority.
By clause 4.2.4 of the site agreement dated 1 March, 2010 Mr Nevin agreed not to make any alterations to the home visible from the outside or any additions to the home unless the park owner gave written consent. The park owner gave no consent to Mr Nevin to paint his home black as he has done.
Of the four Form 6 Notices to Remedy Breach concerning painting the exterior of Mr Nevin’s home black, the first notice issued on 14 March 2013 gave only 17 days for rectification. It was necessary to allow 28 days. That notice is invalid.
The second Notice to Remedy Breach given on 2 April, 2013 gave only 13 days. That made that notice defective as well and it cannot be relied on to found a termination.
On 17 April, 2013 the park owner gave a third Form 6 Notice to Remedy Breach. This time the park owner gave 28 days through to 15 May 2013 to remedy the breach. This notice complies with the Act.
I should mention the park owner gave a fourth Form 6 on 21 May 2013, but the date to remedy breach was 4 June 2013 and besides not giving 28 days, before the rectification period ended the park owner had already filed its application for a termination order. That last Form 6 cannot be relied upon in this application for a termination order.
Unsettling Behaviour
Though reliance on an allegation that the home owner has repeatedly interfered with the quiet enjoyment of the residential park by the parks residents as a basis of termination is no longer being pursued, in the circumstances of this matter it is appropriate in my opinion that Mr Nevin’s behaviour be considered.
From the material filed it seems the principal difficulty the park owner has with Mr Nevin is his erratic and objectionable behaviour. Painting his home black is only one aspect or exhibition of his disquieting behaviour.
Attached to the initial application is a copy of a letter from the park residents association advising that the association had raised a petition in response to offensive letters Mr Nevin had sent to various park residents, and distributed in both parks (Kurrajong and Bindawalla), and placed on notice boards at local shopping centres. The petition called on the management to remove the writer of the offensive letters (Mr Nevin) from the park. There were some 360 signatures.
Comments in the letters were said to be offensive, unfounded and slanderous. Examples of the letters were included with the application. They are offensive and one slanderous.
Further, in a letter dated 9 April 2013 to the park owner the president of the park residents association claimed approximately 10 or 12 homeowners, mainly women living alone near Mr Nevin, had concerns about their safety because of his erratic behaviour.
Mr Nevin has not denied authorship of the letters in the material he has filed in the Tribunal. Mr Nevin filed, amongst other material for the consideration of the Tribunal, a copy of a diary he has kept during his residence at the park through to 22 June 2013. A perusal of the diary suggests an individual struggling to come to terms with life in the park and life generally.
Mr Nevin's diary refers to constant noises in the night and what he describes as corresponding sleep deprivation. He seems to think noises have been made intentionally by parties unknown. In many parts of the diary he refers to elder abuse and sexual abuse, though without particulars. In one document contained in his material entitled ‘new year 2013’, he refers to abuses in the ‘asylum’, which he says is his nickname for the park.
He doesn't reveal why he painted his house black in the diary though he makes mention of it. He made notes on a copy of a letter he received from the park manager about painting the home in which the manager says he understood Mr Nevin did it as a ‘silent protest’. What Mr Nevin was protesting about is not clear, nor was it clear to the park manager when writing the letter. Mr Nevin doesn’t clarify the reasoning behind his protest, but he has added the words ‘non-violent’ to his copy of the letter from the manager, an apparent acceptance that it painting the home black was indeed a protest of some kind.
Mr Nevin does not contest in his material that he has distributed unsavoury letters that offend. He does mention his ‘swearing’ is a release of his anger. As with much else that he writes, what he is angry about is unclear although his diary makes repeated references to sexual and elder abuse.
One might suspect Mr Nevin suffers from some form of mental instability or even perhaps senility, however in the diary there is mention made, in April 2013, of having been taken to Nambour Hospital by police and ambulance for a ‘check’ and that he was assessed as ‘fit’ as he put it. Certainly he returned to the park after that.
From the material filed by Mr Nevin I conclude that he has mental capacity but that he is a very troubled and unhappy man and he strikes out at those around him, the other park residents.
Termination
The Form 6 Notice to Remedy Breach of 17 April 2013 is valid.
By the site agreement Mr Nevin was obliged to seek permission to alter the external appearance of his home before he did so. I have no difficulty in concluding that control over the external appearance of dwellings in such a close community as a residential park is important to appropriate management of the facilities to ensure a comfortable and secure living environment for all park residents.
I conclude painting his home black was a calculated action taken with the design and intention of creating disharmony at the park.
Mr Nevin breached his site agreement in painting his house black in those circumstances, and he has failed to remedy the breach despite notice given.
There is a discretion in the Tribunal, even if a ground of termination has been made out, not to make an order terminating the agreement.[1]
[1] Haraba Pty Ltd v Castles [2007] QCA 206.
In my opinion there is no call to exercise that discretion in this instance. Taking the history of Mr Nevin’s relationship with other park residents and management into account, I conclude the breach concerned is a significant one.
I conclude by painting his home black what Mr Nevin did was understood by him to be objectionable and indeed was purposely done to be objectionable.
In end result I conclude it is appropriate to terminate the site agreement. His continued residence at the park has become untenable.
If a termination order is made relating to a site agreement, by s 39 of the Act the order must state the day the termination is to be effective and require the home owner to give the park owner vacant possession of the site on before the termination day. There is no indication from the park owner that that is required urgently given Mr Nevin’s absence from the park.
The appropriate order is to order termination of the site agreement without further delay. There does not appear to be any advantage to either party in delaying termination.
Site Rent
The park owner seeks an order that arrears of rent be paid. By s 140 of the Act the Tribunal may make any order it considers appropriate to resolve a dispute between the parties. This power extends to the Tribunal making an order as herein sought.
Mr Nevin is in arrears of rent in respect of the period 29 March 2013 to the date hereof. The fortnightly rent payable is $302.80. As at 20 December 2013 the arrears will amount to $5,904.60. There is also an outstanding water charge of $14. Mr Nevin must pay those monies.
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