Paton v New Concept Developments Pty Ltd
[2012] QCATA 132
•1 August 2012
| CITATION: | Paton v New Concept Developments Pty Ltd [2012] QCATA 132 |
| PARTIES: | David Paton (Applicant) |
| v | |
| New Concept Developments Pty Ltd t/as Kurrajong Sanctuary (Respondent) |
| APPLICATION NUMBER: | APL322-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Mr Richard Oliver, Senior Member Dr Bridget Cullen, Member |
| DELIVERED ON: | 1 August 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Leave to appeal is refused. |
| CATCHWORDS: | MANUFACTURED HOMES – where Tribunal allowed an increase in site rent – where reliance on valuation report – whether rent adjustment can be conditional upon site owner undertaking certain works Manufactured Homes (Residential Parks) Act 2003, ss 69, 70 Queensland Civil and Administrative Tribunal Act 2009, s 142(3) QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).
REASONS FOR DECISION
Senior Member Oliver
I have had the advantage of reading the reasons of Member Cullen, and I agree with those reasons, and the orders she proposes.
Member Cullen
This matter arises in the Tribunal’s jurisdiction under the Manufactured Homes (Residential Parks) Act 2003 (“Manufactured Homes Act”). The Applicants, in the proceedings below, were all residents at Kurrajong Sanctuary, a residential park. The Respondent is the owner of Kurrajong Sanctuary.
On the 28 October 2010, Kurrajong Sanctuary provided the Applicants with a notice under s 69 of the Manufactured Homes Act. This notice informed the Applicants that site rent would be increased from $134.41 to $145.00 per week.
On 12 November 2010, the Applicants commenced an application against Kurrajong Sanctuary in the Tribunal, disputing the site rent increase. At the time the application was first filed there were 118 Applicants. Subsequently, a number of additional applicants were joined to the proceedings. Along the way, following negotiations with Kurrajong Sanctuary, a number of parties came to a compromise with Kurrajong Sanctuary and withdrew their applications. The remaining applicants progressed the application in QCAT, and a number of them chose to be represented by fellow Kurrajong Sanctuary resident, David Paton.
On 4 August 2011, the learned Member delivered her judgement. The Member found that after considering the evidence and having regard to the necessary factors set out in s 70(3) of the Manufactured Homes Act, a site rent increase of $2.65 per week was fair and equitable, resulting in site rent of $142.35 per week. The remaining matters in the application, including issues surrounding alleged drainage issues at Kurrajong Sanctuary, were dismissed.
On 2 September 2011, an application for leave to appeal or appeal was filed with the QCAT Appeal Tribunal. In this appeal, Mr Paton stands alone as the sole appellant.
Before this appeal is considered, leave to appeal must be granted.[1] Leave to appeal will ordinarily be granted where the Applicant can show that there is a reasonably arguable case that there was an error in the primary decision;[2] or the applicant has a reasonable prospect of obtaining further substantive relief;[3] or leave is necessary to correct a substantial injustice;[4] or there is a question of general importance upon which, further argument and a decision by the Appeal tribunal, would be to the public advantage.[5]
[1] Queensland Civil and Administrative Tribunal Act 2009, s 142(3).
[2] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[3] Cachia v Grech [2009] NSWCA 232 at 2.
[4] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[5]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
Mr Paton has appealed on four grounds.
First Ground of Appeal
The appellant submits that the learned Member erred in law to the extent that she compared percentage increase in site rents, rather than basing her decision on ‘the range of site rents usually charged for comparable sites in comparable residential parks in the locality,’ as required by s 70(3)(a) of the Manufactured Homes Act.
Section 70(3) does not require the Member to base her decision on any particular consideration, but rather, it requires the Member to have regard to certain factors. The percentage increase was not the only consideration the Member put her mind to when deciding this matter. The Member considered the expert report of valuer Mr Barry Stanaway – this report contained a range of site rents. Further, it was open to the Member to consider the percentage increase as under s 70(3)(l), the Member may consider anything else they consider relevant and therefore no error is demonstrated.
Second Ground of Appeal
The appellant submits that the Member erred to the extent that the Member adopted the evidence of valuer, Mr Stanaway, and relied on his evidence of the range of rent at comparable sites in comparable residential parks. This is based on the assertion that Mr Stanaway’s oral evidence contained nothing that would amount to evidence of such within the meaning of s 70(3)(a).
The arguments that form the basis for this submission assert various reasons as to why the parks considered as comparable by Mr Stanaway are not comparable sites. There is nothing in the appellant’s submissions that suggest that Mr Stanaway was not an independent expert, and that the Member was not able to rely on his evidence. The Member was entitled to accept that Mr Stanaway was an expert in an established field, and on that basis accept the evidence he gave including his evidence considering sites that in his expert opinion were comparable. Again there is no error.
Third Ground of Appeal
The appellant submits that the Member erred in holding that ‘expert evidence is tendered by the Respondent alone’. This is asserted on the basis that a report proffered by the applicants, made by engineer D R Stanfield, was directly relevant to the factors contained in s 70(3)(a), as it went to the question of whether the parks cited by the Respondent were ‘comparable’ within the meaning of the section.
This was, quite simply, just not the case; the report of D R Stanfield relates to engineering matters, and has no relevance whatsoever to comparable sites; and therefore had no bearing on the learned Member’s finding that the rent increase was just and equitable. Simply because Mr Stanfield is an “engineer” does not make him an expert in the area of concern to the Tribunal.
Fourth Ground of Appeal
In the proceedings below, the applicants sought orders in relation to what they submitted were ongoing drainage problems at Kurrajong Sanctuary, and asked the Tribunal to order that any site rent increase be conditional upon the drainage issues being rectified. The appellant submits that the Member erred in declining to make a conditional order, by holding that ‘orders about facilities are not available in proceedings of this kind.’[6]
[6] Paton and Ors v New Concept Developments Pty Ltd [2011] QCAT 385 at para 15.
The appellant is, in my view, correct in asserting that s 70(2)(c) is sufficiently wide to allow the Tribunal to impose conditions the Tribunal considers appropriate upon site rent increases.
In this respect, the choice of language by the learned Member is unfortunate. However, it is clear that the learned Member did consider the drainage issues raised by the applicants below, as she specifically refers to the evidence offered by the applicants about these matters at paragraph 15 of her decision.
The applicants did not offer any evidence with respect to comparable sites in other parks, that the applicants considered to be superior because of improved dwelling construction and better site drainage. Having offered no evidence below on this point, the appellant cannot now attempt to mount an argument that the Member should have made orders conditional on the drainage being fixed.
The issue before the learned Member was whether the site rent increase was excessive; not whether the drainage and or construction of the dwellings were defective. Although the appellant asserts that Mr Stanfield’s report has relevancy to this issue, I disagree. Mr Stanfield’s report relates to corrosion problems being experienced from standing water under some manufactured homes at Kurrajong Sanctuary. This does not, as the appellant asserts, lead to a conclusion that because of these concerns, the site rent should not be increased. There was no evidence presented drawing a nexus between these issues, and the site rent at comparable sites that did not have such problems. The learned Member had no evidence before her that would have warranted her making an order that any increase in site rent be conditional upon the rectification of such matters, even if she incorrectly believed that conditional orders were not possible.
As it is apparent that the learned Member did not have any evidence before her that would have permitted her to decide that the sites at Kurrajong Sanctuary were “lesser” than the comparable site rent ranges set out by the respondent’s expert Mr Stanaway, it is not for me to now disturb her decision and now make an order requiring Kurrajong Sanctuary to rectify the drainage issue the applicants complained of below. This is not a basis upon which leave to appeal should be granted.
Decision
The applicant has not demonstrated an error of law or any other basis upon which leave to appeal should be granted. There is no substantial injustice. Therefore leave to appeal is refused.
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