Paton v New Concept Developments Pty Ltd
[2011] QCAT 385
•4 August 2011
| CITATION: | Paton and Ors v New Concept Developments Pty Ltd [2011] QCAT 385 |
| PARTIES: | David Paton and Home owners as listed |
| v | |
| New Concept Developments Pty Ltd |
| APPLICATION NUMBER: | OCL175-10 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Anne Forbes, Member |
| DELIVERED ON: | 4 August 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | [1] That the amount of the increase in the site rent of $145 per week, as stated in the Respondent’s section 69 notice dated 28 October 2010 be reduced by $2.65 per week, to $142.35 per week, payable on and from 28 November 2010. [2] That, with respect to other orders sought, the application is dismissed. [3] That arrears of site rent payable by the Applicants or any of them, calculated in accordance with Order 1, be paid to the Respondent within 28 days of this order, or within such further time as the Respondent in writing permits. [4] That there be no order as to costs. |
| CATCHWORDS: | Whether proposed increase in site rent fair and equitable – amount reduced Manufactured Homes (Residential Parks) Act 2003, ss 69, 70 |
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
This is an application under section 70 of the Manufactured Homes (Residential Parks) Act 2003 (“the Act”) for disallowance of a site rent increase. The Applicants, David Paton and others, are residents of Kurrajong Sanctuary, 140 Bruce Highway Eastern Service Road, Burpengary (“Kurrajong”). Mr Paton, one of the Applicants, is authorised to represent the others. The Respondent is proprietor of Kurrajong.
Originally there were some 118 applicants.[1] By order of the Tribunal on 31 January 2011, seventeen other applicants were joined. Subsequently 38 applicants[2] accepted a compromise offered by the Respondent and withdrew from the proceedings. From now on the expression “Applicants” refers to so many of the original applicants, and of those joined on 31 January 2011, who have not withdrawn.
[1] See list attached to application filed 12 November 2010.
[2] Statement of Colin Wilfred Kitto, Exhibit CK49.
On 28 October 2010 the Respondent, relying on s 69 of the Act, notified the applicants that their site rent would be increased from $134.41 per week to $145 per week, effective from 26 November 2010, or 28 days after receipt of the notice, whichever was the later. These proceedings began on 12 November 2010.[3]
[3]One week after the coming into effect of amendments made to the Act by Manufactured Homes (Residential Parks) Amendment Act 2010.
The Applicants seek orders that:
The Respondent give details of calculations of the new site fee (proposed) by issuing a new notice and date of increase;
The increase be set aside and a lower fee set; and
Unusable facilities be made good and comfort required for use in community hall (sic).
The criteria for deciding an application under s 70(1) of the Act are listed in s 70(3) as follows:
(a) the range of site rents usually charged for comparable sites in comparable residential parks in the locality of the park;
(b) if it is impractical to obtain data for the range of site rents mentioned in paragraph (a), data is not available for that range or it is just and equitable to do so in the particular circumstances the range of site rents usually charged for comparable sites in comparable residential parks in comparable localities to the locality the park is in;
(c) if it is impractical to obtain data for the range of site rents mentioned in paragraph (a) or (b), data is not available for that range or it is just and equitable to do so in the particular circumstances general trends in rent for residential accommodation in the locality the park is in;
(d)the increased site rent compared to the previous site rent;
(e) the frequency, and amount, of past increases in the site rent payable under the agreement;
(f) any increase in the CPI number during the previous site rent period;
(g) the amenity or standard of the common areas and communal facilities;
(h) any withdrawal of a communal facility or service previously provided at the park;
any addition of a communal facility or service not previously provided at the park;
(j) any increase in the park owner's operating costs for the park during the previous site rent period;
(k) whether the increase is fair and equitable in all the circumstances of the case;
(l) anything else the tribunal considers relevant.
The Applicants say that, having due regard to these criteria, the subject increase is excessive; the Respondent denies that claim and seeks orders that:
The increase applicable to each of the Applicants be confirmed;
The application be dismissed.[4]
Material before the Tribunal
[4] Response filed 15 December 2010, annexure “A”.
The Applicants’ material consists of (1) Submissions by David PATON dated April 2011 and annexures; (2) Amended submission by David PATON dated 2 May 2011; (3) Statements by applicants Malcolm Gordon THOMAS dated 30 November 2010; Ken and Jan ALLEN undated; M Robinson dated 8 March 2011; Robyn and Selwyn WALZ dated 17 April 2011; Carol LUCAS undated; Lyn SPENCER undated; June MONRO undated; Brian and Antoinette TAYLOR dated 2 March 2011; Neville and Valerie CHANDLER undated; Pat LYONS dated 18 March 2011; and Brian and Jean CLARK undated.
The Respondent’s material comprises statements by: (1) Peter Esmond SHADFORTH civil engineering contractor, dated 8 June 2011; (2) Douglas TROOD, chartered accountant, dated 15 June 2011; (3) Barry David Rhys STANAWAY, certified practising valuer, dated 16 June 2011, with annexures; (4) Colin Wilfred KITTO, the Respondent’s operational manager, dated 20 June 2011, with annexures; (5) Submissions filed 20 June 2011; and (6) Supplementary submissions filed 9 June 2011.
Consideration
I face a difficulty not uncommon in cases of this kind[5], in that expert evidence is tendered by the Respondent alone. Apart from Mr Paton’s submissions the Applicants’ relevant material consists largely of the budgeting details of other residents.
[5] See e.g. Daleside Pty Ltd and Anor v Turney and Ors [2011] QCAT 240 at [43].
[10] The assertions and submissions of Mr Paton, and the Respondent’s answers thereto are conveniently and extensively set out, paragraph by paragraph, in Annexure “A” to the statement of Mr Kitto. Further material in answer to the Applicant’s submissions appears in more than 50 other annexures to that statement. Having considered the propositions pro and con in Annexure “A”, and comparing them with the respective submissions, I shall not reiterate them here.
[11] The witness Stanaway is a duly qualified valuer of almost 40 years’ experience. His report includes a declaration in accordance with Rule 428 of the Uniform Civil Procedure Rules. From 1960 to 1973 Mr Stanaway was employed in the Queensland Valuer General’s Department. He is now a partner in John Watt and Associates, Clayfield. After a comparative analysis of the subject property, the adjacent Bindawalla Gardens and six other manufactured home locations he expresses the opinion that an appropriate rental for sites in Kurrajong, as from 1 September 2010, is $275 to $290 per fortnight, or $137.50 to $145.50 per week.
[12] It should be noted at this point that the Respondent is now prepared to allow all applicants the same rate of rent already allowed to those who have withdrawn, namely $284.70 per fortnight, or $142.35 per week.[6] On that basis, the difference between the amount hitherto paid by the Applicants, and the amount acceptable to the Respondent, would be $7.94 per week.
[6] Statement of Colin Wilfred Kitto dated 20 June 2011, paragraph 25.1.
[13] Douglas Trood, chartered accountant, reviews the submissions of Messrs Paton and Stanaway respectively. He notes that the difference between Kurrajong’s market review figure in September 2007 ($251.36 per fortnight) and the figure for November 2010 ($284.70 per fortnight) represents an increase of 13.26%, or 4.42% per annum. In the same period the Respondent’s “nominated overheads” increased by 21.19%. He says further, with reasons, that the Respondent’s operating costs “far exceed the nominated operating costs referred to by Mr Paton ... [and that] the after tax return to the company based on net assets is less than the annual inflation rate.”
[14] Mr Trood rejects any suggestion that site rents should depend on the number of persons occupying a site, and that “the fairest method of applying any increase” is to use a “per site basis”. The suggested alternative, he says, would present “an administrative nightmare as the number of persons occupying sites throughout the course of a year could vary considerably”, while “many of the costs ... would not vary”.
[15] The choice presented to the Tribunal is between the evidence of two independent experts and the submissions of Mr Paton, one of the Applicants, and the “elected representative” of the applicant class.[7] In several respects the experts’ evidence is uncontradicted; where conflicts exist, I prefer the evidence of Messrs Stanaway and Trood.
[7] Letter 2 August 2010.
[16] With due respect to the submissions of pensioner applicants, I accept the uncontradicted evidence of Mr Kitto that many of them are recipients of, or eligible for government rent assistance.[8] I also accept his evidence that Kurrajong’s rental increase in the 2007-2010 period (13.3%) was the lowest, or second lowest imposed in 7 broadly comparable villages,[9] and his analysis of percentages of pension payments claimed by rent in the same period.[10]
[8] Statement dated 20 June 2011, paragraph 21.7 and associated graph.
[9] Statement dated 20 June 2011, paragraph 14.15.
[10] Statement dated 20 June 2011, paragraphs 21.11.
[17] Evidence that recent entrants to a manufactured homes location have been prepared to pay the current revised rent, or a higher amount, has been treated as significant in several cases of this kind.[11] I respectfully adopt this view, and accept the uncontested evidence of Mr Kitto that three persons who entered Kurrajong between November 2010 and May 2011 agreed to pay rent of $145 per week.[12]
[11]Darnell v SEQ Properties Pty Ltd [2005] CCT MH018-04 at [41]-[42]; McGee v New Concept Developments Pty Ltd [2006] CCT MH025-05 at [27]; Taylor v Terus Pty Ltd [2008] CCT MH001-08 at [18].
[12] Statement dated 20 June 2011, paragraph 14.8.
[18] In February 2011, when almost forty residents accepted the Respondent’s offer of $142.35 per week, and the present Applicants did not, the Respondent was entitled to regard the offer as at an end. Commendably it has not done so.[13]
[13] Statement of Colin Wilfred Kitto dated 20 June 2011 paragraph 25.1.
Decision
[19] In all the circumstances I am satisfied that a site rent of $142.35, payable from 28 November 2010, is a fair and equitable application of section 70(3) of the Act.
[20] I have selected the date of 28 November 2010, rather than 26 November 2010, to allow for possible delays in delivery of the s 69 notice dated 28 October 2010. The intent of Order 2 is that extra time to pay arrears be allowed in cases of hardship.
[21] With respect to other relief sought, I find that there has been sufficient compliance with section 69, and that orders about facilities are not available in proceedings of this kind.
ORDERS
That the amount of the increase in the site rent of $145 per week, as stated in the Respondent’s section 69 notice dated 28 October 2010 be reduced by $2.65 per week, to $142.35 per week, payable on and from 28 November 2010.
That, with respect to other orders sought, the application is dismissed.
That arrears of site rent payable by the Applicants or any of them, calculated in accordance with Order 1, be paid to the Respondent within 28 days of this order, or within such further time as the Respondent in writing permits.
That there be no order as to costs.