NLHB Homeowners Association Inc v Baclon Pty Ltd
[2012] QCAT 4
•6 January 2012
| CITATION: | NLHB Homeowners Association Inc v Baclon Pty Ltd [2012] QCAT 4 |
| PARTIES: | Stephen Sydney Hart of NLHB Homeowners Association Inc (Applicant) |
| v | |
| Baclon Pty Ltd ABN 2147483647 trading as Noble Lakeside Hervey Bay (Respondent) |
| APPLICATION NUMBER: | OCL085-11 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Michelle Howard, Member |
| DELIVERED ON: | 6 January 2012 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The tribunal directs: a. that Stephen Hart give a copy of this order to all members of the NLHB Home Owners Association Inc by 4pm on 11 January 2012; b. that any application by home owner/s from Noble Lakeside Hervey Bay for joinder as a party/ies to the proceedings, and for an extension of time to bring the application made seeking orders under section 70, be filed in the tribunal and given to the park owner, together with any evidence and submissions relied upon by 4pm on 20 January 2012; c. that the park owner file in the tribunal and give a copy to the applicant/s any response to any application referred to in b) above together with any evidence and submissions relied upon by 4pm on 3 February 2012; d. Unless the tribunal otherwise orders, that any application/s for joinder and extension of time be determined on the papers not before 8 February 2012; e. That the proceeding be listed for a directions hearing at 9.30am on 13 March 2012. |
| CATCHWORDS: | MANUFACTURED HOMES – application about site rent – whether incorporated home owners association may bring application on behalf of home owners Queensland Civil and Administrative Tribunal Act 2009, s 42 |
APPEARANCES and REPRESENTATION (if any):
This proceeding was heard on the papers pursuant to section 32(2) of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act).
REASONS FOR DECISION
An application has been made by Mr Hart, an office holder of the NLHB Home Owners Association, seeking orders under sections 70 and 72 of the Manufactured Homes (Residential Parks) Act 2003 (the Act) for permanent reduction in site rents of 30% as well as deferral of the 2011 CPI site rent increase for all residents until the bowling green at Noble Lakeside Hervey Bay has been repaired and is usable by all residents.
The park owner seeks orders that the application be dismissed for reasons including that the application was not made following a motion of the homeowners association as opposed to the committee of the association and because it was made before the expiry of an agreed period during which the park owner was to attend to various issues raised by the homeowners association, one of which was the bowling green. Further, it says that it should be dismissed because all of the issues raised have been completed.
Directions were made by the tribunal that the proceeding be heard on the papers. In addition to the application and attached documentation, Noble Lakeside has provided a statement containing both evidence and submissions, which has been responded to by Mr Hart.
Has the application been properly brought by Mr Hart on behalf of home owners?
Mr Hart submits that he has the authority to act on behalf of the members of the homeowners association and bring the application on their behalf. The association is incorporated under the Queensland Associations Incorporations Act 1981. He contends that the members of the association are all residents. He concedes that the committee decided to submit the application, but suggests that a vote was taken at the Annual General Meeting in July 2011 which ratified his authority to act on behalf of members.
The Act provides in sections 70 and 72 that the tribunal may make orders regarding site rent increase and reduction on application by the home owner.
A home owner is defined in the Act[1] to include a person who owns a manufactured home positioned on a site in a residential park under a site agreement; a person who intends to position a manufactured home on a site under a site agreement for use as their principal place of residence; a person who obtains an interest in a site agreement for example under a deceased estate; and another successor in title.[2]
[1] Sections 6, 8, and Schedule.
[2] Section 8.
A homeowners committee may be established under the Act by an election conducted by home owners.[3] The function of the homeowners committee is to deal with the park owner on behalf of the home owners about the day-to-day running of the park and any complaint or proposal about the operation of the park raised by the homeowners.[4]
[3] Part 15, section 100.
[4] Section 102.
By virtue of the Acts Interpretation Act 1954 (the AIA Act), subject to a contrary intention appearing in any Act,[5] a reference to a person in an Act generally includes reference to a corporation as well as an individual.[6] Corporation is defined to include a body politic or corporate.[7]
[5] Acts Interpretation Act 1954, s 4.
[6] Acts Interpretation Act 1954, s 32D.
[7] Acts Interpretation Act 1954, s 36.
The home owners association is an incorporated body. Subject to a contrary intention in the Act, reference to a person generally includes reference to a corporation. Is the association empowered to bring the application on behalf of all home owners at Noble Lakeside Hervey Bay?
The Act provides for a home owner to bring an application. It does not provide for a person generally to do so. The Act makes it clear that only a limited class of persons, namely home owners, may bring an application to the tribunal under sections 70 and 72 of the Act, because it is only on the application of a home owner that the tribunal is empowered to make orders as specified in those sections as it may consider appropriate. Therefore, in my view, the general position under the AIA Act does not assist.
This construction of the Act is reinforced by the provisions regarding the function of the home owners committee. The limited function set out in the legislation does not include making application to the tribunal. Also, a home owner is defined as discussed earlier. The home owners association cannot meet the definition since it does not own a manufactured home positioned on a site in Noble Lakeside under a site agreement or intend to do so, or meet any other of the categories set out in the Act.
Rather, it is the individual members of the association who are able to meet the definition and who individually as home owners are entitled to bring an application before the tribunal under the relevant sections of the Act. If this was not the case, potentially a homeowners association could bring an application on behalf of home owners who do not wish to participate and forseeably, if some home owners are not active in the homeowners committee, without them being aware of the application.
The QCAT Rules 2009 provide for two or more individuals or other entities to make a joint application and nominate an applicant who is to appear in the proceeding for them.[8] However, the application made by Mr Hart is not made as an application jointly with any other person and purports to be on behalf of all home owners by the NLHB Home Owners Association.
[8] QCAT Rules 2009, section 11.
For these reasons, the NLHB Home Owners Association is not a proper applicant.
Directions regarding the proceeding
Although the application was not properly brought by Mr Hart on behalf of the members of NLHB Home Owners Association, it is apparent from the material before the tribunal that at least some individual home owners wish to pursue the application. Also, Mr Hart is a home owner and in his own right was entitled to bring an application. In the circumstances, he may wish to seek leave to amend the application with a view to proceeding to hearing on his own behalf.
Under section 42 of the QCAT Act, the tribunal may make an order joining a person as a party to a proceeding if it considers that the person should be bound by or have the benefit of a decision of the tribunal in the proceeding; the person’s interests may be affected by the proceeding; or for another reason it is desirable. It may be that, consequent upon this decision, that other home owners at Noble Lakeside will make application to be joined as parties to the proceeding.
Any such applications for joinder may or may not be successful of course. However, as it appears that home owners understood the application to be made on their behalf, I consider that they should have the opportunity to make any application for joinder and to have that application determined before the other issues in the proceeding are further considered.
As discussed earlier, a joint application may be made under the QCAT Rules and one applicant nominated to appear for joint applicants. Given that under section 70 any application must be made within 28 days of receiving the notice of increase of rent, an application for extension of time to apply will also be necessary from any home owner/s making application for joinder.
Accordingly, I order as follows:
a) that Stephen Hart give a copy of this order to all members of the NLHB Home Owners Association Inc by 4pm on 11 January 2012;
b) that any application by home owner/s from Noble Lakeside Hervey Bay for joinder as a party/ies to the proceedings, and for an extension of time to bring the application made seeking orders under section 70, be filed in the tribunal and served upon the park owner, together with any evidence and submissions relied upon by 4pm on 20 January 2012;
c) that the park owner file in the tribunal and give a copy to the applicant/s any response to any application referred to in b) above, together with any evidence and submissions relied upon by 4pm on 3 February 2012;
d) Unless the tribunal otherwise orders, that any application/s for joinder and extension of time be determined on the papers not before 8 February 2012;
e) That the proceeding be listed for a directions hearing at 9.30am on 13 March 2012.
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