T J & R C Walsh as trustee for T J & R C Walsh Family Trust v McGuirk
[2012] QCAT 493
•9 October 2012
| CITATION: | T J & R C Walsh as trustee for T J & R C Walsh Family Trust v McGuirk [2012] QCAT 493 |
| PARTIES: | T J & R C Walsh as trustee for T J & R C Walsh Family Trust t/as Durack Gardens (Applicant) |
| v | |
| Lawrence James McGuirk (Respondent) |
| APPLICATION NUMBER: | OCL040-12 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Sandra G Deane, Member |
| DELIVERED ON: | 9 October 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Applicant is authorised to sell the home situated at Site 185 Durack Gardens to a prohibited person, being the park owner or an associate of the park owner, on the condition that the sale price is $15,000 and that the proceeds of sale are applied in accordance with section 54 of the Manufactured Homes (Residential Parks) Act 2003. 2. The Respondent is to pay to the Applicant the termination payment in the sum of $3,362.65. |
| CATCHWORDS: | Manufactured Homes – licence agreement under repealed act – home abandoned – site agreement terminated – authority to sell home to a prohibited person on conditions Mobile Homes Act 1989 |
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
Mr Walsh, as park owner, entered into a written licence agreement with Mr McGuirk, pursuant to which Mr McGuirk was granted a licence to occupy the site described as Site 185, Durack Gardens (the Site).[1]
[1] Dated 19 May 1998.
The licence agreement referenced the Mobile Homes Act 1989, which was repealed by section 147 of the Manufactured Homes (Residential Parks) Act 2003 (MHRP Act).
On the evidence before the Tribunal the licence agreement was in force immediately prior to the MHRP Act commencing and therefore is taken to be a site agreement for the purposes of MHRP Act.[2]
[2] Sections 148, 149 MHRP Act.
The Applicant, as park owner, seeks an order that it be authorised to buy the manufactured home situated at the Site[3] so that it could be repaired to a standard in keeping with the rest of the park and then sold.
[3] Section 53(4) and (5) MHRP Act.
On 24 July 2012 the Tribunal determined that the Site was deemed abandoned[4]. The site agreement is taken to have been terminated on that day.[5]
[4] Section 52(3) MHRP Act.
[5] Section 52(4) MHRP Act.
The Tribunal directed the Applicant to file 2 valuations of the manufactured home by licensed valuers.
The applicant has filed quotes to purchase and remove the manufactured home from the Site received from Tony Cutts Cars and Caravans and Otley Wholesale Pty Ltd, the latter sets out a motor dealer licence number. The quotes are for $14,000 and $15,000 respectively. Neither quote appears to be from a licensed valuer, contrary to the Tribunal’s direction. The quotes do provide some apparently independent evidence of value.
Mr Walsh gave evidence that the respondent paid $20,000 for the home in 1998 and that the respondent had failed to maintain the home such that a number of items of repair were now required.
Having regard to the apparently independent quotes and in the absence of other evidence to the contrary I accept that the home’s value in its present state is $15,000.
In conjunction with the abandonment order the Tribunal may authorise the park owner to sell the home and may impose conditions[6] and may order the home owner to pay any amount payable up to the date of termination.[7]
[6] Section 52(6)(a) MHRP Act.
[7] Section 52(6)(b) MHRP Act.
Mr Walsh gave evidence[8] that site fees owing to 24 July 2012 were $3,362.65. I accept Mr Walsh’s evidence and order the respondent to pay to the applicant the sum of $3,362.65 as the termination payment.
[8] Affidavit sworn 20 July 2012.
In the circumstances the applicant is authorised to sell the home to a prohibited person, being the park owner or an associate of the park owner, on the condition that the sale price is $15,000 and that the proceeds of sale are applied in accordance with section 54 of the MHRP Act.
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