Stockland Property Services Pty Ltd v Scouller

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QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Stockland Property Services Pty Ltd v Scouller [2019] QCATA 117

PARTIES:

STOCKLAND PROPERTY SERVICES PTY LTD

(applicant)

v

JOHN LESLIE SCOULLER

(respondent)

APPLICATION NO/S:

APL268-18

ORIGINATING APPLICATION NO/S:

OCL079-17

MATTER TYPE:

Appeals

DELIVERED ON:

6 August 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown, Presiding
Member Lumb

ORDERS:

1.   The respondent’s application to adduce fresh evidence is refused.

2.   The appeal is dismissed.

3.   The parties shall file (and serve on the other party), within 14 days of the date of these orders, written submissions (no longer than 4 pages) in respect of the question of costs of the appeal.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – ADMISSION OF FURTHER EVIDENCE –  where appeal on question of law and subject to finding of fact below – whether new material relevant to appeal

REAL PROPERTY – RETIREMENT VILLAGES – whether the Retirement Villages Act 1999 (Qld) permits charges for “other services”– where option to receive electricity service from a third party - whether electricity and water meter reading is a “general service” or “personal service”

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142, s 146
Retirement Villages Act 1999 (Qld), s 3, s 5, s 8, s 9s 12, s 102, s 102A, s 103, s 107A, s 108 and the definitions of “general services”, “personal services” and “services charge” in the Schedule.

Kerr v Paku and Anor [2011] QCATA 157
Mannix v Chris Neale Constructions Pty Ltd [2011] QCATA 222
Nielsen v Runaway Bay Village Pty Ltd [2011] QCAT 658
Nolan v Kawana Island Retirement Village Pty Ltd [2009] QCCTRV 6
Taylor v The Owners - Strata Plan No 11564 (2014) 253 CLR 531
Underwood v Queensland Department of Communities (State of Queensland) [2013] 1 Qd R 252

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

Introduction

  1. This is an appeal against a decision of the Tribunal delivered on 11 September 2018 (“the Decision”).[1]  The Tribunal ordered that the appellant in this appeal (“Stockland”), with effect from 21 September 2018, cease invoicing residents of “Fig Tree Village” for the cost of the services of Network Energy Services (“NES”) for meter reading, invoice preparation and associated tasks (“the Services”), other than as a general services charge.

  2. Fig Tree Village is a retirement village run by Stockland.  The applicant below (Mr Scouller) is the respondent to this appeal.  Mr Scouller is a resident of Fig Tree Village.

  3. The dispute between the parties concerns the proper construction of the Retirement Villages Act 1999 (Qld) (“the RVA”) (in particular, the defined phrases “general services” and “personal services”) and whether the Services fall within one or other (or neither) of those definitions.

    The grounds of appeal

  4. In its Application for leave to appeal or appeal…

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Details
Case
[2019] QCATA 117
Decision Date

CaseChat Overview and Summary

Stockland Property Services Pty Ltd v Scouller involved an appeal against a decision of the Queensland Civil and Administrative Tribunal (QCAT) regarding charges for services provided in a retirement village, Fig Tree Village, under the Retirement Villages Act 1999 (Qld). The dispute centred on whether certain services, such as meter reading and invoicing for electricity and water usage, constituted 'general services' or 'personal services' under the Act, and whether they could be charged to residents. The appellant, Mr Scouller, sought to challenge the QCAT's decision by appealing to the Queensland Civil and Administrative Tribunal Appeal (QCAT Appeal), arguing that fresh evidence regarding other services provided should be considered.

The legal issues before the QCAT Appeal included whether the appeal tribunal had the discretion to admit new evidence not presented in the original QCAT proceedings and whether such evidence could impact the outcome of the appeal. Additionally, the court needed to determine the proper interpretation of the terms 'general service' and 'personal service' as they applied to the services provided by NES, the entity contracted by Stockland to manage utilities.

The QCAT Appeal found that the test for admitting new evidence in appeals was not strictly bound by the 'reopening ground' criteria applicable to original proceedings. Instead, the tribunal had the discretion to consider additional evidence if it was relevant to the appeal's outcome. However, in this case, the tribunal concluded that the fresh evidence presented by Mr Scouller was not sufficiently relevant to the appeal's central issue of statutory interpretation, and thus, it was not admitted. The tribunal further found that the services provided by NES, including meter reading and invoicing, were indeed 'general services' under the Act, and therefore, could be charged to residents.

The appeal was ultimately dismissed, and the parties were directed to submit written costs submissions within 14 days.

Orders

Orders of the court

1. The respondent’s application to adduce fresh evidence is refused.

2. The appeal is dismissed.

3. The parties shall file (and serve on the other party), within 14 days of the date of these orders, written submissions (no longer than 4 pages) in respect of the question of costs of the appeal.

Background

Background to the litigation

What are the relevant facts in respect of which the proper statutory construction of the RVA is to be applied?The relevant facts The Tribunal Member made the following relevant factual findings:(a)certain costs associated with the supply of electricity and water to residents of Fig Tree Village were said to total $23,573 for 2017/2018 and were carried out by NES in reading the electricity and water meters, preparing invoices for residents for their electricity and water consumption, collecting the amounts charged “and so on”;[3][3]Scouller v Stockland Property Services Pty Ltd [2018] QCAT 308, [1].(b)the Services are provided under a contract between Stockland and NES;[4][4]Ibid, [3].(c)in the 2016/2017 year, Stockland anticipated that the NES costs would be $23,196 and Stockland made provision for this anticipated expenditure in its general services budget. Half of the anticipated cost was included in the estimated expenditure of $129,000 shown for “Water Rates/Charges”, while the other half was included in the estimated expenditure of $80,600 for “Electricity”;[5][5]Ibid, [4].(d)those figures of $129,000 for water and $80,600 for electricity were estimated total expenditure for Fig Tree Village, for both use by residents in their villas and use by the Village in common areas; and residents were billed for consumption of electricity and water in their villas by way of utilities invoices, based on metered usage, rather than through the “Residence Charges”;[6](e)the proceeding below related to a change introduced with the 2017/2018 budget, in that Stockland adopted a different way of dealing with electricity and water costs by removing the estimated cost of electricity and water to be used by residents in their villas, leaving only estimates for use in common areas;[7](f)Stockland removed the anticipated NES costs expenditure from the general services budget and decided to bill the residents for the cost via their electricity and water invoices;[8](g)Stockland obtained the electricity used in Fig Tree Village, in both common areas and villas, from a supplier; there was a “parent meter”; and Stockland on-supplied electricity to residents, with their consumption monitored through individual meters (and a similar system operated for water);[9](h)midway through the 2017/2018 year, residents became able to procure electricity from third party suppliers because it had become mandatory under national energy rules to ensure that all consumers could choose their supplier. Residents choosing a third party supplier would have to arrange for connection and for a “smart meter” (which could be read remotely) to be installed in their villa. However, residents in fact do not exercise their right to procure electricity from third party suppliers “because the Village supplies electricity at a much lower cost than market suppliers because it generates no profit from supply”;[10](i)NES prepares the utilities invoices that are issued in the name of Fig Tree Village to residents. Invoices are issued approximately every two months. Each invoice details the charged amount for “Electricity Usage” by the resident for the relevant period, based on the number of kilowatt hours of electricity used in the resident’s villa. Similarly, each invoice details the charged amount for “Water Usage” based on the number of kilolitres of water used in the resident’s villa. There is then an “Electricity Supply” charged amount, calculated on a daily rate. This is, at least partly, for the NES costs. The charge relates also to water supply; part of the fee paid to NES is for reading the water meters and invoicing for water consumption;[11](j)the amounts of electricity and water supplied to a villa are metered, but the reading of meters is not itself a metered service. The cost comes not from a meter but from price negotiations between Stockland and its chosen service provider;[12](k)Mr Scouller has not engaged NES to read his meters, nor has Stockland engaged NES to read Mr Scouller’s meters. Stockland has engaged NES to read all the meters in Fig Tree Village, to prepare all the bills “and so on”;[13](l)some of the tasks performed by NES relate to Village-wide matters rather than individual metering and bill preparation;[14](m)if any residents opted out of the current electricity arrangement, and started purchasing electricity from outside suppliers, those residents would be forced to contribute, through their Residence Charges, to the cost of meter reading for residents who have not opted out.[15][6]Ibid, [8].[7]Ibid, [10].[8]Ibid, [11].[9]Ibid, [17].[10]Ibid, [18].[11]Ibid, [22].[12]Ibid, [35].[13]Ibid, [43].[14]Ibid, [46].[15]Ibid, [47].

Evidence

Evidence Before The Court

In relation to the factual findings made by the Tribunal Member referred to at paragraph 7(a) above, in a letter from Stockland to residents at Fig Tree Village dated 6 April 2016[16] it was stated, amongst other things:…Fig Tree Village have appointed [NES] as our Embedded Network Manager so that our activities will remain compliant and legal. They perform this role for more than one hundred retirement villages including sixteen Stockland villages and they are the leaders in electricity on-selling in retirement villages. They will manage compliance as well as reading meters, producing bills, processing rebates, receiving payments for electricity and water and attend to resident queries about bills and usage.[NES] meter readers will read the meters and issue a bill for electricity and water every second month and collect the payments on behalf of the village. The first meter read will occur at the end of this month. A range of payment options are available and a direct debit form will be included with the first bill for residents desiring to use that facility.…[16]Appeal Record Book, page 249.Fresh Evidence On the appeal, Mr Scouller seeks to rely on further evidence not adduced below, namely fee statements issued by Stockland as evidence that Stockland have allowed three residents (two remaining in Fig Tree Village) to opt out of the Village telephone service but continued to pay the respective fees for such service. As to the test to be applied, in Underwood v Queensland Department of Communities (State of Queensland)[17] it was said by Muir JA (Dalton J agreeing):[18] [38] The Appeal Tribunal, in deciding whether to receive the applicant’s further evidence, applied part of the definition of ‘reopening ground’ in s 137 of the QCAT Act. Under that section and s 138 a party is given a right to apply to QCAT for a proceeding to be reopened if a ‘reopening ground exists’. A reopening ground relevantly exists where:‘… the party would suffer a substantial injustice if the proceeding was not reopened because significant new evidence has arisen and that evidence was not reasonably available when the proceeding was first heard and decided’.[39] Under s 139, where a reopening ground exists and where that ground could be ‘effectively or conveniently dealt with by reopening the proceeding’ the Tribunal may grant the application to reopen. Sections 136 to 141 inclusive, however, do not apply to appeals. Section 143 of the QCAT Act which provides for applications for leave to appeal is silent as to the Appeal Tribunal’s ability to receive additional evidence. Section 147, which relates to appeals to the Appeal Tribunal on a question of fact or on a question of mixed fact and law, provides that ‘The appeal must be decided by way of rehearing, with or without the hearing of additional evidence as decided by the appeal tribunal’. The test contained in the definition ‘reopening ground’ in s 137, as a general proposition, is a useful enough guide for the Appeal Tribunal to apply on application for leave, but it would not be correct in law for the Tribunal to fetter its discretion by rigidly applying a test which expressly applies to proceedings at first instance but not to appeals.’ [17][2013] 1 Qd R 252.[18]Ibid, [38]-[39] (emphasis added).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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