Synergy Living Cooroy Pty Ltd v Peacey
[2013] QCAT 89
| CITATION: | Synergy Living Cooroy Pty Ltd v Peacey [2013] QCAT 89 |
| PARTIES: | Synergy Living Cooroy Pty Ltd (Applicant) |
| v | |
| Walter John Peacey (Respondent) |
| APPLICATION NUMBER: | OCL042-12 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | 31 January 2013 |
| HEARD AT: | Maroochydore |
| DECISION OF: | Roxanne M Clifford, Member |
| DELIVERED ON: | 18 February 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Walter John Peacey immediately desist, through the use of verbal abuse, harassment and intimidation, from interfering with the reasonable peace, comfort or privacy of Karen Lord and other residents of Synergy Living Cooroy Pty Ltd. 2. Walter John Peacey pay Synergy Living Cooroy Pty Ltd the sum of $6,885.16 within 45 days of the date of this Order. 3. Walter John Peacey pay Synergy Living Cooroy Pty Ltd all site rent fees that have accrued since 21 January 2013 within 14 days of the date of this Order. 4. Walter John Peacey pay Synergy Living Cooroy Pty Ltd the sum of $2,104.29 within 45 days of the date of this Order. 5. Walter John Peacey pay Synergy Living Cooroy Pty Ltd all electricity fees that have accrued since 1 January 2013 within 14 days of the date of this Order. |
| CATCHWORDS: | Manufactured Homes – site agreement dispute breach of obligations – site rent and electricity fee arrears – interference with reasonable peace, comfort or privacy of residents – Manufactured Homes Act (Residential Parks Act) 2003, ss 16, 140 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Neville Dunne, Director, on behalf of Synergy Living Cooroy Pty Ltd |
| RESPONDENT: | Walter Peacey did not apear |
REASONS FOR DECISION
Synergy Living Cooroy Pty, trading as Synergy Living Cooroy, is the owner of a residential park at 1 Ferrells Road, Cooroy.
Walter Peacey has been a resident of the Park since 2003. Mr Peacey owns and lives in a manufactured home that occupies Site 3 of the Park.
Mr Peacey’s site agreement, dated 14 February 2003, was entered into with the original park owner, Gray and Company Proprietary Ltd, trading as Ashmond Village.
In June 2012 Synergy Living lodged an application with the Tribunal.
Synergy Living essentially claims Mr Peacey has breached his home owner obligations under s 16 of the Manufactured Homes (Residential Parks) Act 2003.
Synergy Living claims Mr Peacey refuses and fails to pay the correct site rent, refuses and fails to pay electricity fees and refuses and fails to pay site rent and electricity fee arrears.
Synergy Living also claim Mr Peacey has interfered with the reasonable peace, comfort or privacy of the residents through aggressive and abusive behaviour towards other residents and staff. Furthermore that he was involved in proceedings under the Peace and Good Behaviour Act 1982 initiated by another resident of the park.
Furthermore, Synergy Energy claim Mr Peacey is under investigation by Police for intentional damage to common areas of the park, including a fire bomb attack, graffiti and tampering with his electricity meter.
In support of the application Synergy Living provided various correspondence and documents, including numerous Form 6 - Notice to remedy breach notices relating to the site rent, electricity fees and arrears, amongst other things. Synergy also provided a number of affidavits and statements from residents and management relating, in particular, to Mr Peacey’s behaviour.
At hearing Synergy Energy provided the Tribunal with further documents relating to electricity charges and notices of site rent increases.[1]
Synergy Living’s proposed Orders
[1] Exhibit 1 and Exhibit 2.
Mr Peacey pay all electricity arrears that are due and payable and are required to be paid under the site agreement and the Act.
Mr Peacey pay all electricity arrears that are due and payable and are required to be paid under the site agreement and the Act
Mr Peacey leave the Synergy Living Cooroy village immediately and that his house be placed with two independent Real Estate agents
Synergy Living be authorised to act on behalf of the seller and authorised to sign any necessary agreements to affect the sale of the house located at 3/1 Ferrels Road, Cooroy. This includes Synergy Living being authorised to accept an offer or offers that are fair and reasonable market offers for Mr Peacey’s house in the expert view of the selling agent.
Synergy Living be authorised to instruct the settlement lawyer or agent of Mr Peacey’s house to pay Synergy Living the amount owing to Synergy Living by Mr Peacey from the proceeds of the sale of Mr Peacey’s house, prior to settlement taking place.
That the amount owing to Synergy Living include all site fees dues and in arrears, all electricity due and in arrears, and all reasonable costs incurred to recover the amounts outstanding from Mr Peacey.
Response
Mr Peacey responded to the application on 23 July 2012. Mr Peacey claims he did not understand the application but states Synergy Living has not terminated his site agreement, nor has he been given proper notice in accordance with the Act. Mr Peacey notes the application seeks to have him removed from the site regardless of whether any order in relation to any site fee adjustment is paid or not.
Mr Peacey further claims, in summary, the principal issue of the application is the increase in site fees, that the Act provides for that process and Synergy Living has failed to follow the Act.
Mr Peacey states he accepts he is obliged to pay electricity fees but claims Synergy Living refuses to provide evidence of the charges to the park and his usage.
Mr Peacey denies he is subject to any Police investigation and states the applicant in relation to the Peace and Good Behaviour application withdrew the matter.
Mr Peacey states he is 69 years, that he has not got a history of not paying bills and states he has no criminal record.
Legislation and conclusions
Section 140 of the Manufactured Homes (Residential Parks) Act 2003 provides that if there is a site agreement dispute either party may apply to the Tribunal for an order and the Tribunal may make any order it considers appropriate to resolve the dispute.
The Tribunal notes it has received no application concerning a site rent increase dispute from Mr Peacey or Synergy Living in accordance with the Act.
At hearing Synergy Living confirmed it was not seeking termination of the site agreement as provided for under the Act.
The Tribunal is satisfied the application is essentially a general site agreement dispute that concerns site rent and electricity fee arrears and the behaviour of Mr Peacey.
Site Rent
Mr Peacey’s site agreement originally provided that he pays $162.70 per fortnight to the park owner and that he is fully responsible for electricity charges.
At hearing Synergy Living advised that its site rent system is undertaken through the issuing of a quarterly invoice that outlines the dates and amounts due. Synergy advised most payments are made fortnightly in advance through direct deposit arrangements.
Synergy Living state Mr Peacey was paying $176.70 per fortnight site rent by direct deposit at the time it issued a notice of increase in site rent to residents in June 2010. The proposed increase was to $258.00 per fortnight.
Synergy Living state following the notice, on 4 August 2010, Mr Peacey increased his direct deposit arrangement to the sum of $217.30 per fortnight, however, Mr Peacey made only one payment at that rate and on 2 September 2010 he reduced the direct deposit arrangement to $195.00 per fortnight.
Synergy Living state Mr Peacey continued paying this amount notwithstanding it issued Mr Peacey ‘Form 6 Notices’ about his failure to pay the correct rent, electricity fees and arrears.
Synergy Living state in September 2011 it issued a further notice of increase in site rent to residents to the amount of $267.28 per fortnight.
Synergy Living state following this notice, on 26 September 2011, Mr Peacey changed his direct deposit arrangements to pay $133.00 per fortnight.
Synergy Living state Mr Peacey continued to pay this amount, notwithstanding it issued Mr Peacey Form 6 Notices about his failure to pay the correct site rent, electricity fees and arrears.
Synergy Living state Mr Peacey continued to pay this amount until 12 October 2012 when he made a one off payment of $534.56. Synergy Living state Mr Peacey has paid no site rent since that date up until the date of the hearing.
The spread-sheet relating to site rent payments provided by Synergy Living indicates, as of 21 January 2013, Mr Peacey owes $6,885.16 in site rent arrears.
Mr Peacey has provided little information to the Tribunal about the site rent or his arrangements to meet them. Synergy Energy provided the Tribunal a spreadsheet that outlines the money it has received from Mr Peacey and the amount it states is due. In the absence of other material the Tribunal accepts that document as the site rent position between Mr Peacey and Synergy Living.
The Tribunal is satisfied, as indicated by the spreadsheet, Mr Peacey has not paid the correct site rent over a period of time. In particular the Tribunal is satisfied Mr Peacey’s last 12 months of payment was less than the site rent he paid in February 2003 when he entered into the site agreement. The Tribunal is also satisfied Mr Peacey has paid no site rent since October 2012.
The Tribunal is also satisfied Mr Peacey has been issued with numerous Form 6 Notices about this matter and has not undertaken any steps to remedy the situation and to meet his site rent obligations.
Mr Peacey made no application to the Tribunal, to dispute the site rent increases at the time the site rent increases took place in 2010 and 2011, although this was an option open to him under the Act.
It is apparent to the Tribunal Mr Peacey has taken it upon himself to determine the site rent he will pay to the park owner.
In the circumstances the Tribunal is satisfied that Mr Peacey has failed to pay the correct site rent over the last two and a half years and that as of 21 January 2013 Mr Peacey has accrued site rent arrears to the total of $6,885.16.
The Tribunal orders accordingly that Walter John Peacey pay Synergy Living Cooroy Pty Ltd the sum of $6,885.16 within 45 days of the date of this Order.
The Tribunal further Orders that Walter John Peacey pay Synergy Living Cooroy Pty Ltd all site rent fees that have accrued since 21 January 2013 within 14 days of the date of this Order.
Electricity fees
Synergy Living advise the Park has a bulk electricity meter but that each site has its own meter that is read monthly by park management or contractors.
Synergy Living state residents receive a monthly invoice that indicates the site number, previous meter reading, current meter reading and total usage for current period. The invoice also contains details of the gazetted tariff for usage fee, expressed in kWh, including GST. The invoice further details service fee cost, rebate amount and number of days charged and indicates the total amount due and date the payment is due.
In his opening statement[2] for Synergy Energy, Director, Mr Dunne stated Mr Peacey stopped paying all electricity fees completely in early 2010. Mr Dunne states despite the issuing of Form 6 Notices in 2010 Mr Peacey indicated he had no intention of paying the electricity fees.
[2] Exhibit 3 – opening statement.
The Tribunal is satisfied, as is evident through various Form 6 Notices, that Synergy Energy had issues with Mr Peacey not meeting the correct electricity fees and arrears in 2010. The Tribunal also accepts, as indicated in the statements of Karen Lord, a resident of the park, and Katrina Knoll, a former manager of the park, that the electricity fee issue came to a head in January 2011 when Ms Lord photographed a friend of Mr Peacey’s allegedly tampering with Mr Peacey’s electricity meter. Ms Knoll states an electrician confirmed the electricity box had been tampered with.
The spreadsheet relating to electricity fees provided by Synergy Living indicates that, as of 1 January 2013, Mr Peacey owed $2,104.29 in unpaid electricity fee arrears.
At hearing Synergy Energy also provided the Tribunal with a copy of a letter to residents, dated 29 July 2011, that outlined the newest electricity fees, service fees and rebates. The letter attached the Queensland Government Ready Reckoner along with a copy of a monthly invoice.[3]
[3] Exhibit 1 resident letter and attachments including monthly invoice.
In his response to the application Mr Peacey noted his obligations to meet electricity fees but he provided no information to his electricity payment arrangements. Mr Peacey claims he has not received proper evidence of his usage and denies he is subject to any Police investigation.
Based on the information provided the Tribunal is satisfied that Synergy Living has, through a resident’s letter, advised residents of the applicable electricity fees in accordance with the Gazetted Tariff. The Tribunal is also satisfied that the monthly invoice to residents adequately details the basis of the electricity fee due and payable. The Tribunal is further satisfied that Mr Peacey has been issued with a number of Form 6 Notices in 2010 and 2012 relating to unpaid electricity fees and arrears.
In the circumstances the Tribunal is satisfied that Mr Peacey has not met his obligations under the site agreement and has failed to pay his electricity fees over a period of time and that, as of 1 January 2013, Mr Peacey has accrued electricity fee arrears to the total of $2,104.29.
The Tribunal orders accordingly that Walter John Peacey pay Synergy Living Cooroy Pty Ltd the sum of $2,104.29 within 45 days of the date of this Order.
The Tribunal further Orders that Walter John Peacey pay Synergy Living Cooroy Pty Ltd all electricity fees that have accrued since 1 January 2013 within 14 days of the date of this Order.
Disruptive behaviour
Synergy Living claim Mr Peacey has over a period of time been abusive and aggressive towards other residents and management. Synergy Living states the Police have been called on a number of occasions. Synergy Living says this behaviour interferes with the peace and comfort of residents and constitutes a breach of the Act.
Synergy Living also claims there has been a number of incidents involving damage to the park property and Mr Peacey is a suspect in the Police investigations.
Synergy Living state following an incident on 16 November 2012 Mr Peacey was charged by the Police for public nuisance.
Synergy Living state on 15 December 2012 a further incident of vandalism occurred in the park and Police have questioned Mr Peacey about this incident. Synergy Living understands further charges will be made.
In the response to the application in July 2012 Mr Peacey denied he was subject to any Police investigation. Mr Peacey confirmed another resident had made an application under the Peace and Good Behaviour Act but states the applicant withdrew the application.
Mr Peacey did not attend the Tribunal hearing. The Tribunal is satisfied Mr Peacey was sent a Notice of Hearing and attempts to contact Mr Peacey by telephone on the day of the hearing were not successful.
The early Form 6 Notices, dated 23 June 2009 and 11 May 2010, indicate a history of disruptive, abusive and aggressive behaviour by Mr Peacey towards a variety of people through incidents of verbal outbursts and swearing.
However, the Tribunal is also satisfied that there has been a focussing of disruptive behaviour by Mr Peacey towards Ms Lord following her allegation of electricity meter tampering, complaint to Police and, although later withdrawn, an application for a Peace and Good Behaviour Order. These events have impacted the harmony of the park.
In particular, Ms Lord’s statement outlines various behaviour by Mr Peacey’s towards her including, swearing, accusing her of tampering with his car, throwing rubbish into her yard, abusing her at a BBQ and playing his television on high volume.
The affidavits of residents Mr and Mrs Hunt, Ms Sandell, Ms Wesley and Mr Hately -James corroborate Ms Lord’s claims of Mr Peacey’s abuse and animosity towards her.
Based on the information provided the Tribunal is satisfied that Mr Peacey has in the past been abusive to a variety of people and more recently, particularly hostile towards Ms Lord that stems from the allegation of electricity meter tampering in January 2011.
In relation to the allegations of property damage/vandalism, apart from Synergy Living’s claim Mr Peacey is subject to Police investigation for various vandalism incidents the Tribunal has not been provided with any formal material to confirm Mr Peacey’s alleged involvement with any incident. Or Police inquiry or investigation.
Whilst the Tribunal accepts Synergy Livings sworn statements about the recent charge of Public Nuisance against Mr Peacey, the Tribunal makes no findings in relation to the allegation Mr Peacey has been involved in vandalism or property damage to the park. These allegations are serious and the Tribunal has not been furnished with proper particulars of the incidents, dates when they are said to have occurred or any formal confirmation from the Police of Mr Peacey’s alleged involvement in them.
Synergy Energy seeks an order, amongst other things, that orders Mr Peacey to leave the Park immediately, to place his home on the market to sell immediately and that Synergy Living be authorised to sign any necessary agreements to affect the sale.
At hearing Synergy Living submitted this was an appropriate order as Mr Peacey brags he won’t pay any outstanding rent or electricity fees and that if Synergy Living did not have control over the sale of the house it would have no chance of recovering the money it is owed.
Whilst the Tribunal acknowledges the concern Synergy Living holds, the Tribunal is not persuaded that the orders Synergy Living propose are appropriate in the circumstances.
This application is the first time Mr Peacey’s rent and electricity arrears have been ventilated before the Tribunal. The Tribunal has made orders in relation to those central issues, and is of the view it is more appropriate Mr Peacey be given the opportunity to meet the payments in accordance with the Tribunal Order.
If Mr Peacey does not follow the Tribunal Order Synergy Living may seek enforceability of that order through the Court. The Tribunal is of the view that is a more appropriate avenue to recover the money rather than the complicated and uncertain order Synergy Living has proposed.
Furthermore the Tribunal notes that if Synergy Living wants Mr Peacey to leave the Park it is open to it to make an application to the Tribunal, subject to the relevant statutory requirements, for the termination of Mr Peacey’s site agreement.
In relation to Mr Peacey’s disruptive behaviour, the Tribunal it is satisfied the Police are the more appropriate authority to deal with any serious incidents and incidents they are called to and will take the necessary action.
Notwithstanding any Police action that may arise from any other specific, incident, the Tribunal is satisfied that Mr Peacey has interfered with the reasonable peace and comfort of residents, and in particular Ms Lord, through abusive language and associated hostility, and has breached his obligations under the Act.
The Tribunal accordingly orders that Walter John Peacey immediately desist, through the use of verbal abuse, harassment and intimidation, from interfering with the reasonable peace, comfort or privacy of Karen Lord and other residents of Synergy Living Cooroy Pty Ltd.
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