Palmer v Grogan - [2019] QCAT 202

QUEENSLAND CIVIL AND

ADMINISTRATIVE TRIBUNAL

CITATION: Palmer v Grogan [2019] QCAT 202
PARTIES: LORRAINE PALMER
(applicant)
v
PENELOPE GROGAN
(respondent)
APPLICATION NO: OCL019-18
MATTER TYPE: Other Civil Matters
DELIVERED ON: 2 August 2019
HEARING DATE: 25 June 2019
HEARD AT: Brisbane
DECISION OF: Member Dr Collier
ORDERS: 1. Application dismissed.

2.

If the parties are unable to agree on the allocation of a car park for the benefit of the Respondent at BPL within 28 days the Respondent may apply to the Tribunal for a further order consistent with this decision.

CATCHWORDS:

REAL PROPERTY – BOUNDARIES OF LAND AND FENCING – IDENTIFICATION OF BOUNDARIES – manufactured homes – site agreement dispute – boundaries of site – failure to accurately identify site

boundaries – failure to accurately identify site boundaries in site agreement – position of structures outside allocated
site – relevance of a later site survey

REAL PROPERTY – LICENCES – REMEDIES – manufactured homes – site agreement dispute – whether

breach of site agreement by home owner – position of structures outside allocated site – unauthorised addition or

extension to dwelling – use of an allocated car park –
written site agreement enforceability of verbal site agreement – effect of a later
Queensland Civil and Administrative Tribunal Act 2009
(Qld), s 32
Manufactured Homes (Residential Parks) Act 2003 (Qld),
s 19(e), s 25, s 25(4)(e), s 25(7), s 38, s 98(2), s 98(3)
De Maid v C&K Anderson Pty Ltd [2014] QCAT 10
O’Brien v SEQ Properties Pty Ltd [2014] QCAT 270
Rutherford v Seachange (Land) as trustee for Seachange
(GC) Unit Trust [2019] QCAT 33
APPEARANCES &
REPRESENTATION:
Applicant: K Yarrow, solicitor
Respondent: B Smeed, Caxton Legal Centre

REASONS FOR DECISION

The Applicant, Lorraine Palmer, is, and was at all relevant times, the owner or the controlling person behind Bundaberg Park Lodge (‘BPL’), located at 20 Childers Road Bundaberg. Bundaberg Park Lodge appears to be a business name owned by the Applicant.
Many documents related this matter make reference to Lorraine Palmer Pty Ltd in dealings with the Respondent. This decision proceeds on the basis that Lorraine Palmer, the Applicant, is the proper party in this matter. In the event that this is not so, either party may apply to the Tribunal to amend the identity of the Applicant. No harm is done to any party because, in any event, Lorraine Palmer appears to be the controlling person behind Lorraine Palmer Pty Ltd.
The Respondent, Penelope Grogan, has rented site number 103 at BPL since 2005 on which she owns a manufactured home. The home was already positioned on the site when the Respondent purchased the home. The Respondent has resided in this home at all relevant times.
The Applicant appointed managers for BPL during most of the period during which the Respondent has resided at BPL, but resumed control and management of BPL herself some time in 2017.
In 2017 the Applicant filed an Application before the Tribunal sitting at Bundaberg requesting the Tribunal issue an order…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Palmer v Grogan

Details

AGLC: Palmer v Grogan [2019] QCAT 202
Case: [2019] QCAT 202
Decision Date: 2 August 2019

CaseChat Overview and Summary

In Palmer v Grogan, the Applicant, Lorraine Palmer, sought remedies against the Respondent, Penny Grogan, regarding the boundaries and conditions of her manufactured home site at Bundaberg Park Lodge (BPL). The dispute arose from the Respondent's installation of a split-system air conditioner, the maintenance of foliage, and alleged breaches of site agreements. The Respondent had initially resided at BPL under an unwritten agreement and later signed a formal site agreement in 2011. However, there were discrepancies between the parties' copies of the 2011 agreement, leading to the current dispute.

The court had to determine whether the Respondent breached any terms of the site agreements, specifically regarding the boundaries of her site, the installation of the air conditioner, and the maintenance of foliage. The court examined the evidence, including the 2017 survey, the first and second site agreements, and the statutory requirements under the Manufactured Homes (Residential Parks) Act 2003. The court found that the boundary of the Respondent's site, site 103, was consistent with the existing fence and was not altered by the 2017 survey or the second site agreement. The court also found that the Respondent did not require the Applicant's consent to install the split-system air conditioner, and there were no complaints from neighbours regarding its installation. Furthermore, the court concluded that the Applicant had acquiesced to the Respondent's site conditions over the years, including the car parking arrangements and the location of the garden shed and boundary fence.

The court concluded that the Respondent was not in breach of any terms of the site agreements and dismissed the Application. The Applicant was not entitled to any remedy, and the Application was dismissed in its entirety.

Orders

Orders of the court

1. Application dismissed.

Background

Background to the litigation

By an amended Application filed on 29 November 2018 the Applicant is now seeking the same remedies or, in the alternative, that the Tribunal terminate the agreement between BPL and the Respondent. The facts Under the Manufactured Homes (Residential Parks) Act 2003 (‘MHRP Act’) there must be a written site agreement between the park owner and the home owner.[2] [2] Manufactured Homes (Residential Parks) Act 2003, s 25. When the Respondent became a home owner at BPL in 2005 she was not required to, and did not, enter into a written agreement with BPL. Nonetheless, the Respondent became a home owner at BPL according to the terms of an unwritten agreement (‘the first agreement’). The relevant terms of the first agreement are identified later. The MHRP Act provides that the terms of an unwritten site agreement are enforceable.[3] [3] Ibid s 25(7). A written site agreement between the Respondent and BPL was executed on 9 June 2011 (‘the second agreement’). There is no dispute that this represents the latest site agreement. There is, however, some dispute concerning the terms of this agreement because each party holds a copy with some variations between them, the implications of which are addressed later. The second site agreement was signed by Penny Jackson, Debbie Woods and Lorraine Palmer. At the time the site agreement was signed Debbie Woods was the manager, or an authorised representative of the manager, of BPL, and Penny Jackson was the former name of the Respondent. Page 15 of the second site agreement contains the following special term, initialled by both parties: 1. Carport to be included into demarcated site area, subject to approval by Council. 2. Carport to be removed from outside the demarcated site area The Applicant had a site plan prepared by a firm of surveyors on or about 19 May 2017 (‘the 2017 survey’). One map prepared from this survey is attached to this decision as Annex 1. Prior to this date there appears to have been no survey to confirm the extent of each site within BPL. Six sites are described within the boundary of the area shown in Annex 1. Evidence before the Tribunal disclosed that since 2011 the Applicant had endeavoured to acquire possession of each of the six sites shown with only two sites, site 103 and site 106, refusing to surrender their entitlements. In her Response and Counter- Application filed 5 September 2018 the Respondent has included a written statement by the occupier of site 106 dated 2 September 2018 which says:[4] [4] This note is signed, but the signature and name are indistinguishable. There is no reason to doubt its veracity. I … of site 106 and the owner of site 103 are the only people who did not surrender our manufactured homes agreement in 2011. The Respondent made the same claim, that sites 103 and 106 were the ‘… only two Home Owners who refused to surrender their Manufactured Home Site Agreements, in 2011 …’.[5] [5] Document dated 4 March 2019 and headed ‘Re;-Attention Q.C.A.T. Member Howe’.

Evidence

Evidence Before The Court

I now consider each of the claims made in the Notice to Remedy Breach issued by the Applicant on 8 January 2018 and reiterated in her amended Application. Applying the evidence Installation of the air conditioning unit The Applicant’s concerns about the air conditioner are as follows: The Respondent’s home previously had had a closed-unit air conditioner installed through the wall of the dwelling. The evidence disclosed that this closed-unit system was insufficient to cool the dwelling sufficiently so that, on medical advice, the Respondent chose to install a larger split-system.[21] [21] Letter from Dr Ian Holthouse dated 8 February 2017. It was common ground that the Respondent had not sought or obtained the consent of the Applicant before the split-system air conditioner was installed. Sections 98(2) and 98(3) of the MHRP Act deal with alterations and additions to manufactured homes subject to a site agreement, as follows: (2) The home owner must not make any alteration to the home that is visible from the outside of the home, or make any addition to the home, unless the park owner gives written consent to the proposed alteration or addition. (3) The park owner must not unreasonably refuse to give the consent. Neither ‘alteration’ nor ‘addition’ is defined in the Act. The home previously had had a single unit air conditioner installed that was visible from outside the home at a height of about 2m. The external components of the split- system air conditioner comprise a vertical duct containing pipes and electrical wiring emerging at about 2m from ground level, and the outdoor unit of the air conditioner, which was at ground level, all located within the Respondent’s site. To the extent that any part of this air conditioner could be seen from outside the site, the outdoor unit is at ground level and obscured by a fence and the adjoining dwelling, while the duct is similarly substantially obscured by the fence and adjoining dwelling and is a colour consistent with the wall of the home. For the purposes of the MHRP Act I find as follows: In regard to inconvenience to neighbouring site 109, the Respondent submitted a statement from a former occupant of site 109. In referring to the Respondent’s split- system air conditioner, the neighbour said:[22] I Kerry Hellens of Bundaberg Lodge-Site 104, next door neighbour to Penny Grogan Site 103. I hereby verify the air conditioner does not effect [sic] me at all, the noise the hot air none of that and I have been at the park for almost 12 months renting this van. [22] Witness statement of Kerry Hellens dated 10 April 2018. It emerged in oral evidence that Ms Hellens no longer occupies site 104, but it was confirmed that there had been no complaints from the existing neighbours concerning the air conditioner. In the meantime a fence has been erected between the two sites so that any adverse effect on site 104, if it ever happened, now would be quite unlikely. The only basis for the Applicant’s objection to the split-system air conditioner derives from aesthetic considerations. Consistent with the Tribunal’s decision in Rutherford v Seachange (Land) as trustee for Seachange (GC) Unit Trust[23] I find that the Respondent did not require the Applicant’s consent before having the split-system air conditioner installed in her home. [23] Rutherford v Seachange (Land) as trustee for Seachange (GC) Unit Trust [2019] QCAT 33.

Decision

Reasons for decision

On the evidence before me I am satisfied that the Respondent maintains site 103 in a neat, tidy and proper manner and will maintain the foliage as required without any order from this Tribunal. Conclusions I find that the boundary of site 103 is that agreed in the first and second site agreements and depicted by the area marked yellow in the map at Annex 2. That is, the boundary of site 103 is consistent with the existing fence presently forming the limits of the site. The 2017 survey does not reflect, nor does it alter, the boundaries of site 103 as contemplated in the first and second site agreements. I find that the Applicant had known of, and suffered, for at least 12 years the terms under which the Respondent resided at BPL, including the car parking and other arrangements. There was acquiescence by the Applicant to the situation over that time in respect of the boundary of site 103, the car parking arrangements, the location of the garden shed, and the location of the boundary fence. I find that there is no substance in the Applicant’s objection to the Respondent’s split- system air conditioner nor to her objection to the presence of foliage along the boundary of site 103. I find that the first site agreement was formed when the Respondent first took up residence on site 103 at BPL and that this agreement defined the terms of the Respondent’s rights and obligations at the time. I find that this agreement included the following terms: While the area of site 103 appears to be the subject of some dispute arising from differences in the area mentioned within different copies of the second agreement, there is nothing that appears intended in the second site agreement to vary the boundaries of site 103. Given the silence in the second site agreement on the issue of boundaries and the uncertainty caused by apparently different areas used in describing site 103 by different copies of the agreement, I am not satisfied that the parties intended the second site agreement to vary the boundaries of site 103. The Applicant has the burden to demonstrate the proposition that the second site agreement varied the boundaries of site 103, and that burden has not been discharged. Nothing in the second site agreement displaces Finding 1. The uncertainty surrounding the meaning of the special conditions in the second site agreement concerning car parking arrangements is sufficient to satisfy me that they cannot be relied upon to displace the first site agreement; thus Finding 2 is not displaced. The 2017 survey does not affect the extent of site 103 because the plan derived from that survey, insofar as it concerns site 103, is inconsistent with the terms of the first and second site agreements and cannot supersede those agreements without agreement between the parties. I find that the Respondent is not in breach of any terms of any site agreement and has not been in breach of any terms of any site agreement. In particular: The Application is without merit and the Applicant is not entitled to a remedy.

Ratio Decidendi

Legal Principle Established

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