W and T Enterprises (Qld) Pty Ltd v Stanton - [2013] QCAT 257

CITATION:

W and T Enterprises (Qld) Pty Ltd v Stanton & Ors [2013] QCAT 257

PARTIES:	W and T Enterprises (Qld) Pty Ltd (Applicant)
v
Ms Lyn Stanton Kerrie Bernau Dieter Bernau Mr Ken Dittman Ms Viv Copeland Ms Mary Barbour Ms Evelyn Jones Mr Wayne Kereopa Mr Paddy Waller Ms Laureen Delaney Ivor Jones Shirley Jones Mr Allen Haynes Mr Albert Watson Mrs Barbara Watson (Respondents)

APPLICATION NUMBER:

OCL081-12

MATTER TYPE:

Other civil dispute matters

DECISION OF:

Ms Bernadette Rogers, Member

DELIVERED ON:

24 May 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

That the application for a site rent increase be refused.

CATCHWORDS:

MANUFACTURED HOMES – site rent increase – meaning of ‘significant increased operational costs’

Manufactured Homes (Residential Parks) Act 2003 (Qld), s 71

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

The park owner gave the home owners named as respondents in this application notice of a site rent increase on 26 April 2012. The home owners did not agree to the increase so the park owner has applied to the Tribunal for an order under s 71 of the Manufactured Homes (Residential Parks) Act 2003 (Qld) (MH(RP) Act).
Section 71 applies where a site rent increase has not been provided for in the site agreement between the parties and the increase is necessary for the park owner to cover significant increased operational costs, unforeseen repair costs or significant facility upgrades.
The park owner states[1] that water and sewerage charges were once included in Council’s rates but these costs are now charged separately by Unity Water. The statement does not say when this change occurred or whether there was a reduction in the Council’s rates to reflect this change.
[1] Applicant’s Statement of Evidence received at the Tribunal on 28 February 2013 at [2].
One consequence of the water and sewerage costs not being included in the Council’s rates is that they are no longer factored into the calculation of the CPI increase under the site agreement. The park owner argues it is entitled to rely on s 71 to increase the site rent payable outside the site agreement by demonstrating a significant increase in utility costs. I accept the water and sewerage costs are a utility cost.
The park owner has provided invoices from Unity Water for the following periods
Billing period  Amount $                 Due Date
1. 1.7.2010 – 31.12.2010                 31,190.92                 13.9.2010
2. 1.1.2011 – 30.6.2011                    28,647.47                 20.4.2011
3. 1.7.2011 – 31.12.2011                  23,137.17                 18.10.2011
4. 11.4.2011 – 21.2.2012                  45,586.60                 5.4.2012
5. 21.2.2012 – 21.5.2012                  11,505.39                 27.6.2012
The park owner says that in the 2010/2011 financial year it paid $59,838.39 in Unity Water costs and in the 2011/2012 financial year it paid $80,229.16 in Unity Water costs and this constitutes a significant increase in the park owner’s operating costs over the previous site rent period.[2]
[2] Ibid at [23] – [24].
The park owner then concedes that if Invoice 5 above is taken into account the actual increase is $3.02 per site per week not $6.95 as previously calculated. However it says the claimed increase of $6.95 is a fair increase in the circumstances and points to the increase in electricity costs, and the increase in CPI which has not been passed on since 2008 to support the increase.
The home owners in their response, received at the Tribunal on 22 March 2013, deny there has been any genuine increase in the operational costs of Alex Beach Park between the 2010/2011 and the 2011/2012 financial years based on the utility costs of water. They say Utility Water was making adjustments to its billing periods during this time and it is a one off situation. Now this adjustment has occurred ongoing invoices will be for three month periods.
In these circumstances the home owners say merely looking at the amounts paid in each financial year does not accurately reflect the cost. The more accurate way to determine any increase is to look at the costs per day for the utility for each site during the periods under review. They rely on s 99A of the MH(RP) Act to support this view however that section only applies to the payment of utilities where the use is separately measured or metered which is not the case here.
The home owners have used two different calculations. The first method[3] shows an increase of $0.42 a week and a decrease of $0.07 a week using a second method.[4] Both methods rely on calculating the cost per day by dissecting each invoice based on water usage, number of days and the amount charged.
[3] Evidence and Submissions from the respondents received 22 March 2013 at [18].
[4] Ibid at Attachment 6.
I accept the argument of the home owners that the operational costs referred to in s 71 of the MH(RP) Act do not always simply equate with the bills paid in any given financial year. The present situation is a case in point where the change in billing periods has produced an anomaly which will not continue into the future. It is hard to argue where there is a saving in one year and a catch up cost in the next that this should be considered a significant increase in operational costs.
In this case the problem seems to be around Invoice 4. That Invoice has a notice on the front of it which states:
This is a one-off transition account covering a longer ‘catch up’ water usage period.
It covers a period of 10 months and spans two financial years. That portion of Invoice 4 relating to the period 11/04/2011 – 30/6/2011 can attributed to the 2010/2011 year and removed from the 2011/2012 year. I have calculated the period to be 316 days, 80 days in 2010/2011 and 236 days in 2011/2012.
$45,586.60 x 80 / 316 = $11,540.91
2010/2011
$59,838.39 +$11,540.91 = $71,379.30
2011/2012
$80,229.16 - $11,540.91 = $68,688.27
However to be consistent there is still a payment for the period from 22/05/2012 to 30/06/2012 which has to be included in the 2011/2012 year to give an accurate comparison and that amount is not available to me.
To try to confirm this initial impression I have looked at the invoices themselves. They are complex but they do have a lot of information which assists to compare the charges over different billing periods.
The first figure is Average Daily Usage. This has dropped steadily from 43,776 litres in Invoice 1 to 30,167 litres in Invoice 5. I am satisfied there has been no increase in operational costs based on increased usage.
The next lot of figures are found under the heading Account Details. I have set these out below. Each figure relates to a unit cost. This figure is then multiplied by usage to calculate the charge. Where there is more than one unit cost on an invoice I have used the higher and there were no comparable figures for sewerage in the final two invoices.
Invoice             1  2  3  4  5
Tier 1                0.50               0.52               0.52               0.52               0.538
Tier 2                0.95               1.00               1.00               1.00               1.036
Sewerage        2.4                  2.57               2.57
Bulk Water      0.85               1.07               1.07               1.34               1.34
I am satisfied there has been an increase in the cost of water between 2010/2011 and 2011/2012.
However on balance, taking into account the amount of the rise in water costs, the decrease in the amount of water used, the calculations of the home owners and the revised calculation of the park owner, I am not satisfied there has been a significant increase in the operating costs of the park based on the evidence that has been presented relating to the utility charges.
Because I have decided the evidence does not support a finding that there has been a significant increase in operating costs I do not need to turn my mind to the factors in s 70(3)(d) – (l) to consider whether the proposed increase is fair and equitable.
I would have considered the rise in electricity costs however I was not given any evidence to support this argument. The park owner’s submission that there has not been a CPI increase since 2008 cannot be considered when attempting to determine if there has been a significant increase in operating costs.
I therefore decide that the application by the park owner to impose site rent increases and payment of arrears is refused.