Paton v New Concept Developments Pty Ltd

[2011] QCAT 62

CITATION: Paton v New Concept Developments Pty Ltd [2011] QCAT 62

PARTIES:	Mr David Paton
v
New Concept Developments Pty Ltd

APPLICATION NUMBER:   OCL160-10  

MATTER TYPE: Other civil dispute matters

HEARING DATE:     On the papers

HEARD AT:  Brisbane

DECISION OF: Anne Forbes, Member

DELIVERED ON: 28 February 2011

DELIVERED AT:      Brisbane

ORDERS MADE: The application is dismissed.  There is no order as to costs.

CATCHWORDS :  Manufactured home – issues between owner of home and manufacturer of home for defects – issues not concerning any legitimate interests of park owner – park owner denies access to site to inspector of Queensland Building Services Authority for purpose of inspecting alleged defects in home – applicant seeks an apology from park owner – application dismissed.

APPEARANCES and REPRESENTATION (if any):

Decision on the papers.

REASONS FOR DECISION

Decision

1. Mr Paton is the owner of a manufactured home occupying a site at Kurrajong Sanctuary pursuant to a site agreement with the park owner, New Concept Developments Pty Ltd (“New Concept”) under the Manufactured Homes Residential Parks Act 2003 (“the Act”). On 18 October 2010 Mr Paton filed an application stating that its object was the “termination of site agreement”.  But on closer examination of that document, he is really seeking an order that the director and spokesman for New Concepts, Mr Walters, write a letter to home owners at Kurrajong Sanctuary admitting wrong, apologising for his actions on 22 April 2010 and promising not to interfere with the alleged rights of the home owners.

1. The Respondent challenges the jurisdiction of the tribunal.  The parties have filed documents and exchanged written submissions.

Background

1. In about 2003 Stanway Projects Pty Ltd (“Stanway”) a company manufacturing and supplying manufactured homes, erected several at Kurrajong Sanctuary.  Mr and Mrs Paton purchased one from the company and made a site agreement with the owner of Kurrajong Sanctuary.  Later, metal piers supporting the Patons’ home and others were found to have rusted and he and other owners complained to Stanway, which tried to remedy the problem by applying a bituminous paint to the piers.  But more rust appeared and Mr Paton turned to the Queensland Building Services Authority (“the QBSA”).  A QBSA officer made several inspections of the affected homes.

1. On 22 April 2010, Mr Paton and other home owners arranged for the resolutions manager for the QBSA to inspect their properties.  But without notice to the home owners, the Respondent, by its solicitors, told the QBSA that its officer would not be admitted to the site.  The QBSA accepted that its officer had no right of entry without the consent of the landowner.  Eventually, after a flurry of letters between the solicitors and the QBSA, consent was given, and the inspection took place.

The Applicant’s case

1. Mr Paton accepts that QCAT has no jurisdiction to order the making of apologies, but now asks the tribunal to “confirm the rights of homeowners in residential parks and conclude that the park operator acted outside its authority to deprive owners of rights & privileges to deal with outside agencies”.  He also claims that the Respondent engaged in unconscionable dealing and wrongly excluded the QBSA inspector.

The Respondent’s case

1. The Respondent opposes the application on several grounds, namely that:

1. The Applicant has no standing: Mr Paton is not a home owner within the meaning of the Act;

1. QCAT lacks jurisdiction because the application is not a “site agreement dispute” according to the Act;

2. Consent was in fact given, the inspection was made, and the factual dispute has been determined;

1. The application is a futile exercise.

1. The Respondent also applies for costs.

Consideration

1. Mr Paton has had a site agreement for his manufactured home at Kurrajong since 2004. He is a home owner within the meaning of section 8 of the Act and it is difficult to see how – or why – the Respondent submits otherwise. (Mrs Paton could be joined as a party if necessary by a simple direction of the tribunal, which the Respondent would have difficulty opposing.)

1. Is the application a “site agreement dispute”?  The Schedule Dictionary defines the term widely as “a dispute between the parties to a site agreement about the parties’ rights and obligations under the agreement or this Act.”[1]

   [1]       Porter v Kenmont Investments [2008] CCTMH 015-07.

[10] The site agreement says nothing about a park owner’s discretion to grant or to refuse access to an official inspector intending to check the condition of the home. The Act has a “quiet enjoyment” provision which obliges the park owner/manager to refrain from interfering with “the reasonable peace and comfort and privacy of the home owner in using the home owner’s site or the common area…”: section 86.

[11]  Is it an interference with the homeowner’s reasonable peace and comfort if the park owner denies access to a building inspector invited by the home owner to check the safety of his structure?  I consider that it is.

[12] Was the intending inspector bound by Part 17 of the Act (power of entry), to seek permission to enter the park to conduct the inspection of the owners home? I do not think so. In the event the inspector, having consulted his superiors, and faced with letters from the Respondent’s solicitor, discreetly waited for the permission that was eventually given. But in my view that was unnecessary. The purpose of inspection was to resolve the question of the rusty piers, which was an issue between the manufacturer and the home owner. That matter did not involve the Respondent. There was no suggestion of any offence against the Act.

[13]  The Respondent says that he knew that an inspector visited the park without seeking permission on several occasions prior to 22 April 2010, concerning Mr Paton’s problems with rust.  It scarcely behoves him then to say: “I didn’t know what the inspection was for, and I denied access to the inspector to protect my legitimate interests.”  However, on the view I take of this case, I need not decide whether his permission was required.  Officious and unreasonable as the initial refusals of permission may have been, Mr Paton concedes that access was eventually granted, and that his concerns were resolved long before he filed this application.  By then, perhaps, he had become somewhat obsessive about the events of 22 April 2010.

[14]  For the reasons above there will be no orders.  The application is dismissed, and there will be no order for costs.