Smith v Lazy Acres Caravan Park
[2012] QCAT 554
•5 November 2012
| CITATION: | Smith and Anor v Lazy Acres Caravan Park [2012] QCAT 554 |
| PARTIES: | Robert Smith Shirley Smith (Applicants) |
| v | |
| Lazy Acres Caravan Park (Respondent) |
| APPLICATION NUMBER: | OCL133-11 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Sandra G Deane, Member |
| DELIVERED ON: | 5 November 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Lazy Acres Caravan Park are to refund Mr and Mrs Smith amounts paid for electricity service fees during the period 13 December 2010 up to and including 28 February 2011. Such amounts are to be paid by 31 December 2012. 2. Lazy Acres Caravan Park is not required to supply bottled gas. 3. Mr and Mrs Smith, as permanent residents, may use the camp kitchen only with permission of the park manager, which may not be unreasonably withheld. |
| CATCHWORDS: | Manufactured Homes – entitlement to charge electricity service fee – not expressly provided in site agreement – requirement for park owner to continue supply of utility – whether supply of bottled gas falls within meaning of utility – use of camp kitchen – conditions of use – whether park rule void for inconsistency with Act Manufactured Homes (Residential Parks) Act 2003, ss 4, 9, 14, 17, 19, 21, 24, 25, 77, 99A, Schedule Acts Interpretations Act 1954, s 14B Pomroy and Ors v Emmetlow Pty Ltd [2012] QCAT 492 |
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
Background
Mr and Mrs Smith are home owners in the Lazy Acres Caravan Park, a mixed use tourist park and manufactured home village, located at Torquay.
There is evidence before the Tribunal that on 16 December 2010 Mr and Mrs Smith signed a site agreement with the park owner (the Site Agreement). It was countersigned on behalf of the park owner and dated 22 December 2010. The commencement date was stated to be 13 December 2010.
On 30 April 2012 the parties agreed that there were 3 questions to be answered by the Tribunal in these proceedings.
Was Lazy Acres Caravan Park entitled to lawfully charge Mr and Mrs Smith for “monthly electricity charge and service fee“ as per Gazetted Tariff 11, Ready Reckoner or merely an electricity charge only; up to 28 February 2011?
Mr and Mrs Smith contend that the Site Agreement and the Manufactured Homes (Residential Parks) Act 2003 (the Act) does not allow the park owner to charge an electricity service fee up to and including 28 February 2011. Mr and Mrs Smith seek a refund of service fees paid as from 1 May 2009.
The park owner contends that prior to the introduction of section 99A of the Act on 1 March 2011 it charged all residents in the park with individual electricity meters such as Mr and Mrs Smith electricity in accordance with the Ready Reckoner published by DEEDI, which was the industry approved method of calculating and applying service fees and charges by on-suppliers of electricity. Effective from 1 March 2011 it no longer charges a service fee.
The Ready Reckoner set out amounts based on monthly electricity usage in kilowatt hours. These amounts included an amount for service fees. It also sets out the charge rate for electricity consumption alone.
The issue is not whether the park owners have applied the charges ‘equitably’ or in accordance with the Ready Reckoner but rather whether the charge is in accordance with the Site Agreement.
If the Site Agreement had set out that electricity would be charged as metered and that a service charge would be charged in accordance with the DEEDI Ready Reckoner then there would be no doubt that what was charged was appropriate.
The main object of the Act is to regulate and promote fair trading practices in the operation of residential parks to protect home owners from unfair business practices and to enable home owners to make informed choices by being fully aware of their rights and responsibilities.[1]
[1] Section 4 of the Act.
The Act provides that the agreement must state the site rent and other charges payable under the agreement[2] and when the site rent and other charges are payable and how they must be paid[3].
[2] Section 25(4)(i)(i) of the Act.
[3] Section 25(4)(i)(ii) of the Act.
Section 6 of the Site Agreement states that:
a)electricity is not included in the rent and the amount to be charged monthly is “as metered”.
b)Other services are said to be “not applicable”.
The Site Agreement does not clearly set out that electricity service fees were payable.
Having regard to the objects of the Act I find that during the period 13 December 2010 up to and including 28 February 2011:
a)Lazy Acres Caravan Park was entitled to lawfully charge Mr and Mrs Smith for an electricity charge only;
b)no amount was payable by Mr and Mrs Smith for electricity service fees during this period.
There is no evidence before the Tribunal by way of any previous site agreement or otherwise to enable the Tribunal to determine the rights and obligations of Mr and Mrs Smith prior to 13 December 2010 on this question and therefore their application in respect of amounts paid from 1 May 2009 up to and including 12 December 2010 must fail.
Lazy Acres Caravan Park are to refund Mr and Mrs Smith amounts paid for electricity service fees during the period 13 December 2010 up to and including 28 February 2011.
Is the supply of bottled gas regarded as a ‘supply of utility’ pursuant to section 17(d) of the Manufactured Homes (Residential Parks) Act 2003?
Mr and Mrs Smith contend that the park owner’s decision to no longer supply bottled gas to them is not lawful.
By letter dated 4 August 2009 the park owner advised Mr and Mrs Smith that from 1 February 2010 that gas bottles and refills would no longer be available from the park office. The park owner contends that it is not obliged to provide this service as it is not a connected utility.
The park owner is responsible to the extent it is within the park owner’s control to ensure the continuity of supply of a utility to the park and the site.[4]
[4] Section 17(d) of the Act.
The term ‘utility’ is defined to mean any of the following services:
a)electricity;
b)gas;
c)sewerage;
d)water;
e)another service prescribed under a regulation.[5]
[5] Schedule to the Act.
There is no definition in the Act of gas or service.
The definition of utility was recently considered by the Tribunal in Pomroy and Ors v Emmetlow Pty Ltd [2012] QCAT 492. In that case the Tribunal accepted that ‘gas’ included bottled gas. This was not in the context of section 17 but rather section 99A.
In interpreting legislation the first step is to consider the natural and ordinary meaning having regard to the purpose of the Act and the legislative context.[6] As ‘gas’ is not defined it is possible that the term may have different meanings in different contexts.
[6] Section 14B Acts Interpretations Act 1954.
In view of the main objects of the Act and the context I find that the purpose of the obligation in section 17(d) of the Act is to ensure that where essential services are supplied to the park and to sites the park owner continues to do so where it is in the park owner’s control. If this were not the position and the park owner decided to discontinue such services it would cause the home owner difficulty in sourcing an alternative provider of such a service.
In this context I accept that mains gas would almost certainly be captured in section 17(d). Where bottled gas is readily available from alternative suppliers it should be regarded as a commodity rather than an essential service. The evidence before the Tribunal is that there are other readily available suppliers of bottled gas in the vicinity of the park. Compelling a park owner to continue to provide a commodity is not consistent with the objects of the Act.
I find that section 17(d) of the Act does not apply to the supply of bottled gas by Lazy Acres Caravan Park.
Lazy Acres Caravan Park is not required to supply bottled gas.
May Mr and Mrs Smith, as permanent residents of Lazy Acres Caravan Park, use the camp kitchen referred to in the application:
i)unfettered;
ii)only with permission of the park manager, which may not be unreasonably withheld: or
iii) at any time, other than during peak holiday periods?
Mr and Mrs Smith contend that park rule 4 relating to the use of the camp kitchen is inconsistent with section 14(a)(iii) of the Act and relying upon section 24(1) of the Act park rule 4 should be deleted.
A site agreement is to provide for the home owner’s non-exclusive use of the park’s common areas and communal facilities.[7]
[7] Section 14 of the Act.
Park rules attached to the site agreement form part of the site agreement.[8]
[8]Part 1 Schedule at Section 16 of the Site Agreement; Part 2 Terms of site agreement at Section 6.
In any event park rules are taken to be included as terms of a site agreement.[9]
[9] Section 19(c) of the Act.
If a provision of the Act is inconsistent with a special term of a site agreement the provision of the Act prevails and the term is void.[10]
[10] Section 24(1) of the Act.
Terms taken to be included under section 19 are defined to not be special terms.[11]
[11] Section 21 of the Act.
Park rules are not special terms because they are terms taken to be included under section 19. Therefore section 24(1) of the Act does not apply and park rule 4 is not void by operation of section 24.
The park owner may make park rules about the use of communal facilities.[12]
[12] Section 77 of the Act; Part 2 Terms of site agreement at Section 6.
The park rules attached to the Site Agreement provided at item 4 “Residents have full use of the common areas of the park, including the swimming pool, playground and barbeque areas. The camp kitchen is not a common area, and is primary for tourist use. Permanent residents wishing to use the camp kitchen may do so only after consulting with the Park Manager. Permission to use the camp kitchen will not be unreasonably withheld.”
Mr and Mrs Smith seek clarity as to the circumstances where they may use the camp kitchen. Some confusion seems to have arisen due to different formulation of rights of access to the camp kitchen. These include:
a)Part 2 of the owners’ information document dated 22 December 2010 at “Facilities details” it sets out that the park owner will provide certain facilities or services to residents and includes “Communal camp kitchen in tourist section (not to be utilised during peak holiday periods)”.
b)Part 4 of the owner's information document dated 22 December 2010 at “Additional information” it sets out that “Manufactured Home owners hereby acknowledge that the communal camp kitchen shall not be utilised by the manufactured home owners during peak holiday periods or during high occupancy of the tourist sites.”
The owner’s information document is a document provided to homeowners to help the person make an informed decision.[13] It does not form part of the site agreement. Where there is any ambiguity the terms of the site agreement take precedence over any information provided in the owner’s information document.
[13] Section 9 of the Act.
The evidence before the Tribunal is that the version of park rules attached to the Site Agreement was the version in place for the park commencing 1 April 2010 and were known to Mr and Mrs Smith before they entered into the Site Agreement.
The only formulation of the rights which are terms of the Site Agreement are those set out in park rule 4.
I find that Mr and Mrs Smith, as permanent residents, may use the camp kitchen only with permission of the park manager, which may not be unreasonably withheld.
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