Trout v Daleside Pty Ltd
[2010] QCAT 240
•28 May 2010
| CITATION: | Trout v Daleside Pty Ltd [2010] QCAT 240 |
| PARTIES: | Mrs Annette Mary Trout |
| v | |
| Daleside Pty Ltd and Dunluce Properties Pty Ltd trading as Beaudesert Garden Estate |
| APPLICATION NUMBER: | OCL006-10 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | BRISBANE |
| DECISION OF: | G Spender |
| DELIVERED ON: | 28 May 2010 |
| DELIVERED AT: | BRISBANE |
ORDERS MADE: | The Tribunal does not have jurisdiction to hear and determine this matter |
| CATCHWORDS : | Manufactured homes – jurisdiction – whether Applicant is a “home owner” as defined Section 8 Manufactured Homes (Residential Parks) Act 2003 |
APPEARANCES and REPRESENTATION (if any):
| Decision on the papers. |
REASONS FOR DECISION
This is a preliminary jurisdiction hearing in an application filed on 31 March 2010 by Mrs Annette Mary Trout (“the Applicant”) who resides with her husband at 35 Palm Place, Beaudesert Garden Estate in Beaudesert, in which the Applicant seeks various orders under the Manufactured Homes (Residential Parks) Act 2003 (“the MHRPA”). The Respondent park owner, Daleside Pty Ltd and Dunluce Properties Pty Ltd trading as Beaudesert Garden Estate, pleads in its defence that the Applicant is not a “home owner” in terms of the MHRPA and that the Tribunal has no jurisdiction to hear the application. This is the issue to be determined here.
The parties have agreed that the question of jurisdiction should be determined on the papers and they have filed statements and submissions.
The term “home owner” is defined relevantly in section 8(1)(a) of the MHRPA as:
“a person who owns a manufactured home that is positioned on a site in a residential park under a site agreement”
A “site agreement” is defined in section 14 as:
“an agreement between a park owner and a home owner…”
The application seeks orders under sections 22, 72 and 140 of the MHRPA. Applications under sections 22 and 140 can only be made by a park owner or a “home owner”. An application under section 72 can only be made by a “home owner”.
The material before the Tribunal includes a copy of a contract of sale of the manufactured home positioned at 35 Palm Place, dated 30 March 2007. The vendor is stated to be the Estate of John Tate, Executor Ian Tate, and the purchasers are stated to be Rhonda Kerwin and Alan Trout, the latter being the daughter and son respectively of the Applicant. The contract is signed by Ian Tate on behalf of the vendor and by each of Ms Kerwin and Alan Trout as purchasers. The sale price is $136,000.00.
Ms Kerwin and Alan Trout have filed a statement and an affidavit respectively and they do not deny they each signed the contract of sale as purchasers of the home at 35 Palm Place, and that the sale was duly completed in accordance with the terms of the contract. It is clear that the Applicant acquired no legal interest in the home under the contract of sale.
The Tribunal accepts the evidence of the Applicant, Ms Kerwin and Alan Trout that the Applicant and her husband, Mr Neville Trout, contributed the sum of $38,000.00 to the purchase price of the home and have since expended further monies in renovating and improving the home. However the contract of sale does not name the Applicant and her husband as co-purchasers. The Tribunal has no equitable jurisdiction and thus no power to consider whether the Applicant and her husband have acquired an equitable interest in the home by virtue of their financial contributions.
The evidence also establishes that on 4 April 2007 Ms Kerwin and Alan Trout entered into a site agreement with the Respondent in respect of the home at 35 Palm Place. Ms Kerwin and Alan Trout are named in part 1, section 2 of the Form 2 site agreement as the home owners. The Form 2 was signed in part 4 of the Form 2 by Alan Trout as “home owner” and was also signed by the Applicant as the second “home owner”. As the Applicant had no legal interest in the home at the date of the signing of the site agreement and as a site agreement under the MHRPA is an agreement between a park owner and a home owner, the Applicant’s signature is of no legal affect. The Tribunal finds that the existing site agreement in respect of 35 Palm Place is between Ms Kerwin and Alan Trout and the Respondent.
On 5 January 2010 Ms Kerwin and Alan Trout served on the Respondent a Form 7 Notice of Proposed Sale and Assignment and a Form 8 Assignment (transfer) under the MHRPA. The Form 7 states that the home owners are Rhonda Kerwin and Alan Trout and it is signed by both Ms Kerwin and Alan Trout and they state that they propose to sell to the Applicant a one-third interest in 35 Palm Place. The Form 8 is signed by Ms Kerwin and Alan Trout as sellers and by the Applicant and her husband, Neville Trout, as buyers. Mr Neville Trout is disabled following a stroke and the Applicant has authority to act on his behalf. The evidence establishes that Ms Kerwin and Alan Trout in accordance with section 49 of the MHRPA have given the Respondent a written request for the Respondent’s consent to the assignment, but the Respondent has refused to consent to the assignment. There is no evidence before the Tribunal of an executed contract of sale by Ms Kerwin and Alan Trout of a one-third interest in the home to the Applicant and her husband.
10. In these circumstances the Tribunal finds that the Applicant has not, as of the date of this determination, acquired any legal interest in the home which would bring her within the definition of “home owner”, and has not successfully obtained an assignment of the existing site agreement to herself. She is not entitled under the MHRPA to bring the current application as a “home owner”.
Order
11. The Tribunal does not have jurisdiction to hear and determine this matter.
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