O'Brien v SEQ Properties Pty Ltd
[2014] QCAT 270
•1 May 2014
| CITATION: | O’Brien v SEQ Properties Pty Ltd [2014] QCAT 270 |
| PARTIES: | Lorna O’Brien (Applicant) |
| v | |
| SEQ Properties Pty Ltd (Respondent) |
| APPLICATION NUMBER: | OCL005-13 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | 16 April 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Hughes |
| DELIVERED ON: | 1 May 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. SEQ Properties Pty Ltd repositions the home on site 185 so that it does not encroach outside its boundaries by 1 September 2014; and 2. In default, SEQ Properties Pty Ltd pays to Lorna O’Brien the sum of $27,874.00 to reposition the home on site 185 so that it does not encroach outside those boundaries. |
| CATCHWORDS: | MANUFACTURED HOMES – where site agreement dispute – whether breach of duty by park owner to precisely identify site – where park owner aware of boundaries - where failure by park owner to accurately identify site boundaries in site agreement – where home owner relies upon information provided by park owner - where information not sufficient for home owner to position home within site – where manufactured home encroaches on road reserve park – whether order to reposition home is appropriate Manufactured Homes (Residential Parks) Act 2003 (Qld), ss 4, 14A, 17, 19, 25, 25B, 35, 58, 87, 89, 91 and 140 Castlemaine Tooheys Ltd v Carlton & United Breweries Ltd (1987) 10 NSWLR 468 Clarke v Cascade Pools (Qld) Pty Ltd [2010] QCAT 323 Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 Spargo v Katz [2010] QCATA 9 |
APPEARANCES and REPRESENTATION (if any):
APPLICANT: Lorna O’Brien appeared in person
RESPONDENT: SEQ Properties Pty Ltd represented by Angus Booker, Chief Executive Officer
REASONS FOR DECISION
What is this Application about?
Lorna O’Brien wants SEQ Properties Pty Ltd to reposition her manufactured home within its site boundaries at an estimated cost of $27,874.00.[1]
[1]Quote LB of Queensland Complexing Pty Ltd dated 26 November 2013.
Lorna O’Brien’s home encroaches up to 1.6 metres onto a Department of Transport and Main Roads road reserve.[2] SEQ is the park owner from whom she rents her site.
[2]Identification Survey Map dated 6 September 2011.
What is the Tribunal’s jurisdiction?
The Tribunal may make any order it considers appropriate to resolve a site agreement dispute.[3]
[3]Manufactured Homes (Residential Parks) Act 2003 (Qld) s 140.
Ms O’Brien and SEQ entered into a site agreement for Site 185 commencing 19 October 2007.[4] The application requires a determination of whether SEQ is in breach of the site agreement or the Act[5] as a result of the position of Ms O’Brien’s home. This requires a determination of the parties’ rights and obligations under that agreement or the Act.[6]
[4]Site Agreement between SEQ Properties Pty Ltd as Park Owner and Lorna O’Brien as
Home Owner commencing 19 October 2007.
[5]Manufactured Homes (Residential Parks) Act 2003 (Qld).
[6]As envisaged by the Manufactured Homes (Residential Parks) Act 2003 (Qld), s 14A(1)(a).
The Tribunal therefore has jurisdiction to determine the dispute.
What are SEQ’s duties to Ms O’Brien?
SEQ contends that Ms O’Brien has not identified any duty owed to Ms O’Brien or commensurate breach that led to the home encroaching onto the road reserve. SEQ states that it merely gave the original owner a right to install the home on and to occupy Site 185. It claims that it therefore had no responsibility under the Site Agreement or at law to ensure that the home was correctly positioned on the Site or within site boundaries.
Unlike commercial leases or transactions to purchase real estate, the park owner and home owner are in a special relationship. That special relationship is couched within the legislative framework.[7] A park owner’s duties are therefore both statutory and contractual and not confined to a lessor’s obligations.[8] Where those duties are statutory, they are included as terms of the Site Agreement.[9]
[7]Manufactured Homes (Residential Parks) Act 2003 (Qld).
[8]See for example Manufactured Homes (Residential Parks) Act 2003 (Qld), ss 17(c), 25, 25B, 35, 58, 87, 89 and 91.
[9]Ibid s 19(e).
The main object of the legislation is 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.[10] That main object is achieved by facilitating the disclosure of information about a residential park and the legislation to a prospective home owner for a site.[11] The legislation reflects this by imposing a specific duty on a park owner to precisely identify the site.[12]
[10]Ibid s 4(1)(b).
[11]Ibid s 4(2)(b).
[12]Ibid s 25(4)(e).
As a matter of statutory interpretation, a statute that creates a duty creates a right in the persons for whose benefit the duty was imposed.[13] The statutory duty to precisely identify the site recognises that home owners and prospective home owners have an inherent vulnerability in relying upon information within the province of and provided by the park owner.
[13]Groves v Winbourne [1898] 2 QB 402; Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397.
The persons who benefit from the duty are therefore home owners who enter into a site agreement with the park owner for that site – both original and subsequent.
Within this context, the park owner has both a statutory duty[14] and a contractual duty[15] to ensure that the Site Agreement must precisely identify the site sufficiently to ensure that a home owner is able to properly position a home on the site.
[14]Manufactured Homes (Residential Parks) Act 2003 (Qld) s 25(1) and (4)(e).
[15]Ibid s 19(e).
Ms O’Brien purchased her home from Mr George Tyler and Mrs Jenny Tyler in late September 2007. Mr and Mrs Tyler assigned the original Site Agreement to Ms O’Brien[16] and it continued until SEQ entered into a new Site Agreement[17] with Ms O’Brien on 19 October 2007.
[16]Site Agreement between SEQ Properties Pty Ltd as Park Owner and G and J Tyler as Occupier commencing 19 September 2003.
[17]Site Agreement between SEQ Properties Pty Ltd as Park Owner and Lorna O’Brien as Home Owner commencing 19 October 2007.
The benefit of SEQ’s duty to precisely identify the site was either assigned to Ms O’Brien when the original Agreement was assigned to her or continued under her new Site Agreement.
Did SEQ breach its duties as Park Owner?
The most recent Site Agreement permits the use of the site to position a manufactured home on the site or reside in a manufactured home already positioned on the site.[18] However, it merely refers to the site location as “185” - the area of the site is blank[19].
[18]Ibid at Part 1, Schedule 1.
[19]Ibid at Part 1, Schedule 1, Section 3.
The original Site Agreement relevantly provides:
As a result of a relevant agreement made by you with SEQ… you are entitled to position a Mobile Home on the site the particulars of which are as follows (insert particulars sufficient to identify the position of the mobile home. A sketch plan may be annexed and referred to for ease of identification):- Site 182[20]
[20]Site Agreement between SEQ Properties Pty Ltd as Park Owner and G and J Tyler as Occupier commencing 19 September 2003 at Part 1, Paragraph 1.
Ms O’Brien resides in a home she believed was positioned on Site 185. In doing so, she relied upon information about the site SEQ provided to her and the previous home owners. That information was limited to the site number and the site layout plan (at least to the original home owners).
The original home owners built the home on a site within the park in or around 2003. In doing so, they relied upon information about the site provided to them by SEQ. That information was limited to the Site Agreement describing the entitlement to position a home on a site incorrectly identified as “Site 182”[21] and a site layout plan that purports to show the location of Site 185 within the park.[22]
[21]Ibid at Part 1, Paragraph 1.
[22]Site Layout Plan approved by the Maroochy Shire Council dated 18 July 2003.
In consideration of the home owner paying rent, the home owner is entitled to position a home on the site or reside in a home already positioned on the site. Implicit in this is that the site is sufficiently identified for a home owner to correctly position a home on the site:
Terms can be implied by law (as a legal incident to a particular class of contract, regardless of the intentions of the parties) or by necessity to give business efficacy to a particular contract. Those implied by law are deemed necessary by implication; otherwise the whole of the transaction would be futile.[23]
[23]Spargo v Katz [2010] QCATA 94 at [13], per Wilson J applying Castlemaine Tooheys Ltd v Carlton & United Breweries Ltd (1987) 10 NSWLR 468 at 487-489, Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 345-346 (per Mason J), Liverpool City Council v Irwin & Anor [1976] 2 All ER 39 and Miller v Hancock [1893] 2 QB 177 at 180 and 181 (per Bowen LJ).
As Park Owner, SEQ permitted the use and is therefore aware of that use. As Park Owner, SEQ surveyed the park land and was therefore aware of the park’s boundaries when it created the sites.[24] In these circumstances, an Agreement to let a site that describes the permitted use of the site as positioning a home on the site or residing in a manufactured home already positioned on the site would be rendered futile without an implied undertaking by the Park Owner that the site is sufficiently identified to position the home envisaged by the permitted use.
[24]SEQ Chief Executive Officer’s oral evidence was that SEQ commissioned a survey when it purchased the land in 1998 and was aware of the dimensions of each site.
SEQ’s site layout plan has the handwritten notation “Setbacks – prefer 3m from road but 2m is acceptable”. Critically, SEQ’s site layout plan fails to include any scale, north point, site measurements or the position of the site including its rear boundary in relation to the surrounding land.
Implicit in the site identity is that the numbered site is and had been marked with the correct boundaries sufficient for a home owner to position a home on the site. Identifying a site by number alone or with a sketched site layout plan is meaningless unless its boundaries are correctly marked.
SEQ’s information did not accurately show the boundaries sufficient to build a home within those boundaries – in particular, an accurately marked rear boundary to correspond with the physical boundary in relation to the adjoining road reserve.
SEQ has therefore breached its statutory duty and contractual duty to precisely identify the site.
What is the result of SEQ’s breach?
The building plans submitted by the original home owner’s builder show the home fitting within the boundaries of the site.[25] However, because SEQ’s information to the home owners did not identify the site’s rear boundary to correspond with its physical boundary in relation to the adjoining road reserve, the site’s boundaries to position the home were not precisely identified.
[25]Maroochy Shire Council Site Plan approved 18 July 2013.
SEQ’s failure to precisely identify the site in relation to its surrounding land has resulted in Ms O’Brien residing in a manufactured home that is positioned partly on Site 185 and partly upon a road reserve adjoining the rear boundary.
This is not envisaged by SEQ’s Site Agreement with Ms O’Brien.
What is the appropriate Order?
The Tribunal may make any order it considers appropriate to resolve the dispute.[26]
[26]Manufactured Homes (Residential Parks) Act 2003 (Qld) s 140.
SEQ is liable to Ms O’Brien for its failure to properly identify the site sufficient to ensure that her home had been properly positioned on the site.
Resolving the dispute requires repositioning the home to rectify the encroachment resulting from this failure. This will facilitate Ms O’Brien selling her home to enable her to live with her family and ensure the dispute does not recur with any subsequent home owners.
The costs of repositioning the home are estimated at $27,874.00.[27]
[27]Quote LB of Queensland Complexing Pty Ltd dated 26 November 2013.
In the absence of evidence of the period required to reposition the home, I will allow SEQ until 1 September 2014 and in default, that SEQ pays to Ms O’Brien those costs of repositioning her home. This will obviate the need for the parties to return to the Tribunal in the event of any delay preventing SEQ from complying with the order to reposition the home.
Ms O’Brien also claims $5,000 for estimated miscellaneous costs including furniture storage, disconnecting and reconnecting utilities, accommodation, repairs and council approvals.
No particulars or evidence of how these amounts will be incurred or mitigation of loss are provided. The Tribunal cannot award an amount claimed without proof of the amount and how it has been calculated:
In the face of poorly prepared material, the tribunal cannot make assumptions or guess at facts and events or the meaning or importance of material. The tribunal cannot make findings of facts where there is no evidence. It cannot award damages if there is no material that points to the quantum of the damage suffered. Parties must take responsibility for the preparation of their own case.[28]
[28]Clarke v Cascade Pools (Qld) Pty Ltd [2010] QCAT 323 at [3].
Without evidence to support this claim to miscellaneous costs of $5,000.00, it is dismissed.
The appropriate orders are that:
SEQ Properties Pty Ltd repositions the home on site 185 so that it does not encroach outside its boundaries by 1 September 2014; and
In default, SEQ Properties Pty Ltd pays to Lorna O’Brien the sum of $27,874.00 to reposition the home on site 185 so that it does not encroach outside those boundaries.
2
6
0