Nicholson v Hometown Australia Sandstone Pty Ltd
[2025] QCAT 180
•30 April 2025
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Nicholson v Hometown Australia Sandstone Pty Ltd [2025] QCAT 180
PARTIES:
STEVE NICHOLSON (applicant)
SANDRA NICHOLSON (applicant)
v
HOMETOWN AUSTRALIA SANDSTONE PTY LTD (respondent)
APPLICATION NO/S:
OCL078-24
MATTER TYPE:
Other civil dispute matters
DELIVERED ON:
30 April 2025
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Senior Member Brown
ORDERS:
1. That part of the proceeding brought by the following applicants is dismissed:
(a) Ian Boast;
(b) Tina Bower;
(c) Ross Brazier;
(d) Robynne Britt;
(e) Janice Campbell;
(f) Angeline Craig;
(g) Vicki Crook;
(h) Stella Fallow;
(i) Michael Fama;
(j) Dianne Ferguson;
(k) Allan Geppert;
(l) Ann Godfrey;
(m) Maree Golds;
(n) Marlene Graves;
(o) Russel Gray;
(p) Terese Hagan;
(q) Anthony Howard;
(r) Mark Kane;
(s) Catherine Kelly;
(t) Desley Keso;
(u) Peter Lewis;
(v) Cameron Marsden;
(w) Gail Prewett;
(x) Stephen Reynolds;
(y) Susan Russell;
(z) Gary Schultz;
(aa) John Sly;
(bb) Paula Smith;
(cc) Chris Springett;
(dd) Deborah Teggins;
(ee) Colleen Townsend;
(ff) Jeff Treacey;
(gg) Jeanette Willes;
(hh) Bruce McDonald;
(ii) Jennie Mitchell;
(jj) Kerry Moran;
(kk) Amanda North;
(ll) Kenneth Park;
(mm)Sylvia Peters;
(nn) Ann Phillips;
(oo) Kay Power;
(pp) Paul Williams.
2. The lead applicants must file in the Tribunal two (2) copies and give to Hometown Australia Sandstone Pty Ltd one (1) copy of submissions addressing whether Kenneth McDermott was a party named in the Form 11 and participated in the meeting with the respondent on 23 January 2024 and the mediation on 5 June 2024, by:
4:00pm on 14 May 2025.
3. Hometown Australia Sandstone Pty Ltd must file in the Tribunal two (2) copies and give to Steve Nicholson and Sandra Nicholson one (1) copy of any submissions relied upon in response, by:
4:00pm on 28 May 2025.
4. The Tribunal will determine on the papers whether that part of the proceeding brought by Kenneth McDermott may continue, after 28 May 2025.
CATCHWORDS:
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – GENERALLY – Jurisdiction of Tribunal – statutory requirements for application to Tribunal under the Manufactured Homes (Residential Parks) Act 2003 (Qld) – where pre-proceedings alternative dispute resolution required to be undertaken before application to the Tribunal by parties to a residential park dispute – where a number of applicants failed to undertake pre-proceedings alternative dispute resolution – whether compliance with pre-proceedings dispute resolution a mandatory pre-condition to commencing proceedings in QCAT – where proceeding brought by applicants dismissed
Manufactured Homes (Residential Parks) Act2003 (Qld), s 107, s 108, s 114, s 115, 116(3), s 141
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355
APPEARANCES & REPRESENTATION:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)
REASONS FOR DECISION
These reasons concern the Manufactured Homes (Residential Parks) Act2003 (Qld) (‘MHA’) and the entitlement of a party to a residential park dispute to commence a proceeding in the Tribunal without first participating in legislatively prescribed alternative dispute resolution.
The MHA and the pathways to the Tribunal
A party to a residential park dispute may apply to QCAT for an order to resolve the dispute.[1] For present purposes, there are two aspects of the MHA that are relevant. The first involves the pathways to the Tribunal for a party to a residential park dispute. The second involves the circumstances in which home owners in a residential park may act jointly in relation to a residential park dispute.
[1]MHA, s 115.
(a) The pathways to the Tribunal
The first pathway to QCAT requires a party to engage in dispute resolution to attempt to resolve the dispute. This pathway is applicable where the application is not authorised under an ‘exempt provision’ of the MHA. Exempt provisions will be referred to later in these reasons. The first pathway involves a two stage process before an application may be filed in the Tribunal.
The first stage of the process involves a party to a residential park dispute giving the other party a notice nominating a time, date and place for the parties to meet to negotiate a resolution of the dispute.[2] After the notice has been given, the parties must meet and try to resolve the dispute by negotiation.[3] If the parties have attempted to resolve the dispute by negotiation and the dispute has not been resolved can, a party apply to the principal registrar of QCAT to refer the dispute for mediation.[4] This is the second stage of the process. Upon application to refer a dispute for mediation the principal registrar must appoint a mediator to mediate the dispute and give written notice of the time and place for the mediation.[5] Following the mediation, the mediator must provide to the principal registrar either a copy of the mediation agreement if the dispute has been resolved, or if not resolved a written certificate of the outcome of the mediation.[6] The way is then open for a party to a residential park dispute to apply to QCAT.
[2]Ibid, s 107(1)
[3]Ibid, s 107(3).
[4]Ibid, s 108(1)
[5]Ibid, s 108(3).
[6]Ibid, s 114(1).
Section 116(3) of the MHA provides:
(3) A party to a residential park dispute (other than a dispute mentioned in section 14A(1)(b)) may apply to the tribunal only if—
(a)the dispute has been referred for mediation under section 108; and
(b)1 of the following applies—
(i)the parties to the dispute can not reach a mediation agreement;
(ii)a party to the dispute does not attend, or withdraws from, the mediation conference for the dispute;
(iii)the dispute is not settled within 4 months after the dispute is referred for mediation;
(iv)the parties reach a mediation agreement and the party making the application claims the other party has not complied with the agreement—
(A)within the time stated in the agreement; or
(B)if no time is stated, within 2 months after the agreement is signed.
If the requirements of s 116(3) are satisfied, a party to a residential park dispute may commence a proceeding in QCAT.
The second pathway to the Tribunal involves certain types of applications which are exempt from the operation of s 116(3). These are applications made under an ‘exempt provision’ to which reference has been made.[7] The exempt provisions are set out in s 116(5). If a party is applying to the Tribunal under an exempt provision, the party is not required to adopt the first pathway and may file an application without engaging in pre-proceedings dispute resolution.
[7]Ibid, s 116(2).
(b) Home owners may act jointly
Section 141 of the MHA provides:
141 Home owners may act jointly in relation to residential park dispute
(1)This section applies if a home owner who is a party to a residential park dispute (the individual dispute) may do any of the following things in relation to the dispute—
(a)carry out negotiations under section 107;
(b)take part in mediation;
(c)apply to the tribunal for an order.
(2)The members of a group of home owners for the residential park may do the thing jointly in relation to a residential park dispute arising out of facts or circumstances that are the same as, or similar to, the facts or circumstances of the individual dispute.
A proceeding for a residential park dispute is commenced by the filing of the approved form, Application for a tribunal hearing – general. At part A of the application, the applicant is required to indicate whether they are a home owner, a park owner or a group representative. An applicant may be both a home owner and a group representative.
Part D of the application requires the applicant to indicate whether they have attempted mediation and if so, to name the mediation number or reference.
Part H of the application has the heading ‘Lead applicant details and responsibilities’ and includes the following information:
A group of home owners may carry out negotiations, take part in a mediation or apply to the Tribunal for an order. A group of homeowners may appoint a lead applicant. In most cases, the Tribunal will require the appointment of a lead applicant.
The lead applicant represents all applicants in the proceeding before the Tribunal. The lead applicant’s address is the address for service of the applicants. A final resolution of the proceedings, other than by way of a final decision of the Tribunal after a hearing, may be authorised by the lead applicant.
Part H of the application sets out the obligations of the lead applicant. Where applicable, the applicant signs the application accepting the responsibilities of the lead applicant. Part I of the application identifies each joint applicant. Each applicant is required to sign the application authorising the lead applicant to represent them in the proceeding as the lead applicant considers appropriate.
Consideration
It is not controversial that the applicants’ claims in the present proceeding fall within the application of s 116(3) of the MHA.
Mr and Mrs Nicholson are the lead applicants. There is no dispute that of the fifty applicants, only nine (including Mr and Mrs Nicholson) complied with the pre-proceeding dispute resolution requirements under the MHA before the proceeding was commenced. Of these nine applicants there is some uncertainty as to the correct identity of one. I will address this applicant separately. The remaining applicants will be referred to as the subject applicants.
The Tribunal made directions for the lead applicants to file evidence demonstrating compliance with s 116 by each of the subject applicants. The lead applicants were also directed to file submissions addressing why, in the absence of compliance with s 116, that part of the proceeding brought by each of the subject applicants should not be dismissed pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act2009 (Qld) (‘QCAT Act’) as being frivolous, vexatious or misconceived or lacking in substance or otherwise an abuse of process.
The lead applicants have filed submissions. They concede that of the subject applicants, forty three have not complied with s 107, s 108 or s 116 of the MHA. The remaining subject applicant, Kenneth McDermott, is identified as the owner of a home situated on a lot in the park. There is evidence that individuals with the same surname but with different Christian names were parties to the pre-proceedings mediation process.
I will first address the meaning and effect of s 116(3) of the MHA. In Project Blue Sky v Australian Broadcasting Authority[8] it was stated:
… a court construing a statutory provision must strive to give meaning to every word of the provision. ... In The Commonwealth v Baume … Griffith CJ cited R v Berchet … to support the proposition that it was “a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent”.
[8](1998) 194 CLR 355 per McHugh, Gummow, Kirby and Hayne JJ.
Section 116(3) provides that a party may apply to the tribunal only if s 116(3)(a) and (b) are satisfied. The word ‘only’ must be given meaning. In my view, the use of the word evinces a clear legislative intent to constrain the circumstances in which a party to a residential park dispute may apply to the Tribunal in circumstances where such application is not made pursuant to an exempt provision. To construe s 116(3) otherwise would be to deprive the section of utility.
This preferred construction of the section is consistent with s 115 of the MHA which provides that a party to a residential park dispute may, subject to s 116, apply to the tribunal for an order to resolve a dispute.
Section 4(1) of the MHA provides that the main object of the Act is to regulate, and promote fair trading practices in, the operation of residential parks to protect home owners from unfair business practices and to enable home owners, and prospective home owners, to make informed choices by being fully aware of their rights and responsibilities in their relationship with park owners. Section 4(2)(e) provides that the main object is achieved by providing ways of resolving a residential park dispute. The construction I prefer of s 116(3) is consistent with these provisions.
The use of the phrase ‘subject to s 116’ is mirrored in a number of other provisions of the MHA.[9] This reflects the insertion of the pre-proceedings dispute resolution provisions in the MHA by the Housing Legislation (Building Better Futures) Amendment Act2017 (Qld) (‘HLAA’). In the second reading speech of the Bill the Minister referred to ‘new … processes for dispute resolution (of) matters before they are escalated to the Queensland Civil and Administrative Tribunal. The costs and power imbalance involved in current dispute procedures have left many residents vulnerable…’. This statement evinces a clear intention that participation by the parties to a residential park dispute in dispute resolution under the Act is required before an application can be filed in QCAT. Support for this conclusion may also be found in the Explanatory Note to the Bill in which it is noted that most manufactured home owners are retirees living on a limited, fixed income. The requirement for parties to engage in alternative dispute resolution before proceeding to QCAT and potentially incurring costs is consistent with a legislative recognition of the constraints imposed upon parties of limited financial means to incur such costs. As has been earlier referred to, a number of provisions of the MHA were amended by the HLAA by inserting the phrase ‘subject to s 116’. Again, the Explanatory Note to the Bill supports my preferred construction of s 116(3). For example, in relation to the amendment of s 22, s 25A and s 25B the Note states that ‘… the parties must attempt mediation of that dispute before applying to the tribunal…’ (emphasis added).
[9]See s 22(2), s 25A(2), s 25B(7), s 35, s 49(5)(b)(ii)(B), s 50(2), s 69E(2)(c), s 70(3), s 71C(2), s 72(2), s 73(2)(d)(iii), s 74(2), s 74(3)(b), s 82(4), s 90(3), s 98(4).
The next issue to address is the meaning and application of s 141 of the MHA. Section 141(2) permits a group of home owners to carry out negotiations, take part in mediation or apply to the tribunal for an order jointly in relation to a residential park dispute arising out of facts or circumstances that are the same as, or similar to, the facts or circumstances of the individual dispute.
Earlier in these reasons, I referred to the form and content of the application to QCAT where a group of applicants are seeking relief. It should be noted here that the MHA does not provide for a ‘lead applicant’ in proceedings commenced for a residential park dispute. The role of lead applicant is created by operation of s 28(1) of the QCAT Act which provides that the procedure for a proceeding is at the direction of the Tribunal subject to the QCAT Act, an enabling Act or the QCAT rules. Where a proceeding by a group of home owners is commenced in QCAT, the role of the lead applicant is to assist the Tribunal to achieve the object of the QCAT Act to, inter alia, have the tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick.[10] This enables the Tribunal to ensure proceedings are conducted in an informal way that minimises costs to parties, and is as quick as is consistent with achieving justice.[11] Facilitating the conduct of proceedings through a lead applicant is consistent with the obligation found in s 28(3)(d) of the QCAT Act for the Tribunal to act with as little formality and technicality and with as much speed as the requirements of the QCAT Act, an enabling Act or the rules and a proper consideration of the matters before the tribunal permit.
[10]QCAT Act, s 3(b).
[11]Ibid, s 4(c).
Section 141 permits a group of home owners to act jointly when the facts and circumstances of their individual disputes are the same or similar. There are many circumstances in which this may arise. The most obvious include where a site rent increase is proposed by a park owner, where there is a dispute between home owners and a park owner about park rules, or when there is a dispute between home owners and a park owner about common areas in a park. Permitting home owners to jointly engage in negotiations, mediation and applications to QCAT encourages consistency in the operation of residential parks for the benefit of both home owners and park owners. This is consistent with the main object of the Act in s 4(1)(b).
Section 141 is a provision that is procedural in nature and effect. While the section permits home owners to act jointly, there is nothing in the section that either expressly or impliedly operates to waive compliance by an applicant with the substantive requirements of s 116(3).
Conclusion
With the exception of Mr McDermott, the failure by the subject applicants to comply with s 116(3) is fatal to their claims. The parts of the proceeding by the subject applicants are dismissed pursuant to s 47 of the QCAT Act on the basis that the claims by the applicants are misconceived or lacking in substance.
As for Mr McDermott it will be necessary to determine whether he is one and the same person identified as having participated in the pre-proceeding mediation. Accordingly, directions will be made for further submissions to be filed to determine whether Mr McDermott has complied with s 116(3) of the MHA.
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