O'Brien v SEQ Properties Pty Ltd

[2013] QCAT 755

CITATION: O’Brien v SEQ Properties Pty Ltd [2013] QCAT 755

PARTIES:	Lorna O'Brien (Applicant)
v
SEQ Properties Pty Ltd (Respondent)

APPLICATION NUMBER: OCL005-13

MATTER TYPE: Other civil dispute matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Ms Kate Buxton, Member

DELIVERED ON: 24 May 2013

DELIVERED AT: Brisbane

ORDERS MADE: 1.    The application filed 19 March 2013 to strike out the proceedings is dismissed.

CATCHWORDS: Manufactured Homes – Application to strike out proceedings – whether dispute under Manufactured Homes (Residential Parks) Act 2003 – dispute between parties to a site agreement
Manufactured Homes (Residential Parks) Act 2003 ss 14A, 140

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. By an application for miscellaneous matters filed 19 March 2013 the respondent park owner seeks an order that the applicant home owner’s application be struck out on a summary basis.

2. The Manufactured Homes (Residential Parks) Act 2003, section 14A defines that a dispute under that Act as one between the parties to a site agreement about the parties rights and obligations under that agreement or under the Act.

3. It is common ground between the parties that the Applicant, Ms O’Brien entered into an agreement with the respondent to occupy a site within the Maroochy River Cabin Village and Caravan park.  That agreement allows, inter alia, for the applicant to ‘reside in a manufactured home already positioned on the site’.

4. The manufactured home in which the applicant resides is positioned partly on the site and partly upon neighbouring government owned land. 

5. The parameters of the dispute between the parties can conveniently be defined as whether the respondent park owner is in breach of the site agreement as a result of the position of the Applicant’s home. The proper characterisation of this dispute is one between the parties to a site agreement about those parties’ rights under that agreement and is therefore plainly a dispute within section 14A of the Act and to which that Act applies.

6. This Tribunal cannot accede to the application to strike out these proceedings on the basis that they fall outside the Act.  On the contrary, this is a dispute which this Tribunal must determine.[1]  The submissions advanced by the respondent to support the application for a summary strike out of the proceeding are the very submissions which require testing at a full hearing.

   [1]Manufactured Homes (Residential Parks) Act 2003 s 140.

7. Summary relief of this nature should be granted only in the clearest of cases. Section 47 of the QCAT Act allows for the striking out of a proceeding if it is, inter alia, misconceived, lacking in substance or an abuse of process. That the parties have a different view as to the proper outcome of the dispute is not an indication of any of these factors.

8. There is a genuine controversy to be quelled in this proceeding, and that should be done so after a full hearing on the merits under section 140 of the Act.

9. The application filed 19 March 2013 to strike out the proceedings is therefore dismissed.