W & T Enterprises (Qld) Pty Ltd v Bernau
[2010] QCATA 71
•16 November 2010
| CITATION: | W & T Enterprises (Qld) Pty Ltd v Bernau [2010] QCATA 71 |
| PARTIES: | W & T Enterprises (Qld) Pty Ltd (Appellant) |
| v | |
| K & D Bernau (Respondents) |
APPLICATION NUMBER: APL109-10
| MATTER TYPE: |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Justice Alan Wilson, President Peta Stilgoe, Member |
DELIVERED ON: 16 November 2010
DELIVERED AT: Brisbane
ORDERS MADE: Appeal dismissed
| CATCHWORDS : | MANUFACTURED HOMES – TERMINATION OF SITE AGREEMENT – DISCRETION – EXCEPTIONAL CIRCUMSTANCES – where park owner has approval for redevelopment – where Member at first instance refused to terminate agreement based on exceptional circumstances – whether tribunal has discretion not to terminate agreement – whether home owner’s ill health is an exceptional circumstance PROCEDURE – where order made that witness not required to give evidence personally or by telephone – where appellant wishes to introduce new evidence – whether Member erred in excusing witness – whether new evidence should be accepted in appeal Acts Interpretation Act 1954, s 32CA(1) Bayview Street Pty Ltd v Anderson [2007] QCCTMH 7, applied |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Ms A Brook of Counsel, direct brief |
| RESPONDENT: | IPA Law |
REASONS FOR DECISION
PRESIDENT:
In this matter the Appeal tribunal was comprised of QCAT Member Ms Peta Stilgoe, and me. I have had the advantage of reading Ms Stilgoe’s reasons in draft form. I agree with her conclusions and her reasons for them, and the order she proposes.
The original decision refusing an order terminating Mr and Mrs Bernau’s site agreement in the manufactured home park where they have lived since 2003 was based upon unchallenged medical evidence that, as the Member said in his Reasons of 6 May 2010, ‘… Mrs Bernau’s medical conditions are so acute that a forced relocation has life-threatening implications.’[1]
[1] W & T Enterprises (Qld) Pty Ltd v Errol Way & Ors [2010] QCAT 318
The argument, advanced for the appellant, that s 38 of the Manufactured Homes (Residential Parks) Act 2003 does not, despite using the word ‘may’, leave this tribunal with a discretion whether or not to make an order was also disavowed by the Queensland Court of Appeal in Haraba Pty Ltd v Castles [2007] QCA 206 in which Williams JA, with whom Holmes JA and Philippides J agreed, expressly said at para [6]:
‘… s 38 provides for termination of a site agreement by the Tribunal… It is clear that the Tribunal has a discretion whether or not to make the order, even if one of the grounds was strictly made out.’ (emphasis added)
MEMBER PETA STILGOE:
W & T Enterprises (Qld) Pty Ltd (“W & T”) owns a residential park at Alexandra Headland. It has Council approval to redevelop the park into 138 townhouses. Mr and Mrs Bernau own a manufactured home within the park. On 27 April 2010, QCAT refused W & T’s application to terminate the Bernau site agreement. W & T has appealed that decision, saying that the learned Member made a mistake in law and fact.
Under s 142(3)(b) of the QCAT Act an appeal may only be brought as of right (ie, without the leave of this appeal tribunal) on a question of law. I accept that the arguments advanced in respect of the proper construction of s 38 involve questions of that kind and leave is unnecessary but, for these reasons, would refuse the appeal.
Exceptional circumstances
Section 38(1)(f) of the Manufactured Homes (Residential Parks) Act 2003 (“the MH Act”) states that, on application by the park owner, the tribunal may make an order terminating a site agreement if the park owner wishes to use the site for another purpose. Section 38(2) of the MH Act requires an application for termination on this basis to be accompanied by a document, certified by the local government, stating that the intended purpose is lawful.
If the tribunal does terminate a site agreement pursuant to s 38(1)(f) of the MH Act, s 40 requires the tribunal to make an order that the park owner pay the home owner compensation for the termination of the agreement.
At paragraph 44 of the decision under appeal, the learned Member said this:
At the commencement of the hearing both parties acknowledged that the order should be made unless exceptional circumstances are shown to exist. In support, the comments by Member Spender in Northshore Bayview Street Pty Ltd v Anderson were relied on. In this decision the learned member stated that the “meaning of section 38 is clear. A park owner is entitled to a termination order if Council approval for redevelopment of the park has been obtained. Only in exceptional circumstances in my view should the discretion to terminate not be exercised where the ground in section 38(1)(f) is established”.
W & T says that, while it acknowledged the apparent authority of Member Spender’s decision, it did not expressly acknowledge that the termination order should be made unless exceptional circumstances exist. It says that the concept of “exceptional circumstances” is not in accordance with the intention of s38(1)(f) because:
a) The Mobile Homes Act 1989, the predecessor of this Act, stated that a tribunal shall not make an order…to terminate [a site] agreement unless … the tribunal is satisfied that the making of the order is reasonable and just in the circumstances”;
b) The absence of the words “reasonable and just” in s38(1)(f) in the MH Act is deliberate;
c) “Exceptional circumstances” is the same test as “reasonable and just”. Another way of phrasing the question is whether termination is “fair”;
d) The Act has removed the requirement for the tribunal to consider whether the termination was fair and Member Spender, in Northshore Bayview Street Pty Ltd v Anderson[2] sought to revive the test without any basis for doing so;
[2] [2007] QCCTMH 7 at paragraph 37
e) The learned Member applied the same flawed logic as was applied in Northshore;
f) The concept of “exceptional circumstances” directly contradicts the clear statement in the explanatory notes to the Act[3]:
“The Bill recognises the park owner’s right to use the land subject to local government consent, for other purposes. Home owners are protected by the provisions in the Bill…in that they provide for the Commercial and Consumer Tribunal to make orders in relation to the payment of compensation for relocation where the purpose of the land is changed to permit redevelopment.”
g) The only support for the tribunal having any discretion is the use of the word “may”. If the legislature intended the tribunal to have a discretion, it would have given direction on how the discretion should be exercised. As there is no direction, it follows that the tribunal has no such discretion and “may” should be read as “shall”.
[3] At page 3
W & T’s argument is in direct contradiction to the provisions of s 32CA(1) of the Acts Interpretation Act 1954: “In an Act, the word may …used in relation to a power indicates that a power may be exercised, or not exercised, with discretion.” Clearly there is a discretion in the tribunal when considering the application of s 38(1)(f) of the MH Act.
The objects of the MH Act are set out in s 4. These principles must guide the exercise of the discretion:
a) To protect home owners from unfair business practices: s 4(1)(a);
b) To enable home owners, and prospective home owners, to make informed choices by being fully aware of their rights and responsibilities in their relationship with park owners: s 4(1)(b);
c) Declaring particular rights and obligations of the park owner, and home owners, for a residential park: s 4(2)(a); and,
d) Regulating the making, content, assignment and ending of a site agreement.
The objects of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”) are also relevant to the exercise of the discretion:
a) To have the tribunal deal with matters in a way that is accessible, fair, just economical, informal and quick: s 3(b); and,
b) To ensure like cases are treated alike: s 4(d);
It was proper for the learned Member to have regard to Northshore in the exercise of his discretion. It is a decision of the Commercial and Consumer Tribunal that considered the operation of s 38(1)(f) of the MH Act which has not been overturned on appeal. Consideration of whether any exceptional circumstances exist is consistent with the objects of both the enabling Act and the QCAT Act. The learned Member did not fall into error in this regard.
Mistake of fact – Bernau’s previous ownership of real estate in Queensland
In paragraph 57 of his decision, the learned Member commented that the Bernau’s purchase of this home was their first opportunity to purchase their own home. W & T argues that cross examination of Mr Bernau at the hearing established that Mr and Mrs Bernau had previously owned property in Queensland with their daughter. W & T says that Mr and Mrs Bernau must have known the difference between owning a home built on their own land, and owning a manufactured home.
Findings of fact by a tribunal will not usually be disturbed on appeal if the facts inferred by the Tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it[4].
[4]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 197 ALR 201 at
207, 208
An appellate tribunal may interfere, however, if the conclusion at first instance is ‘contrary to compelling inferences’ in the case[5]. As the High Court said in Fox v Percy:
In such circumstances, the appellate court is not relieved of its statutory function by the fact the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must not “shrink from giving effect to its own conclusion.”[6]
[5] Chambers v Jobling (1986) 7 NSWLR 1 at 10
[6] Fox v Percy (supra) at 209 per Gleeson CJ, Gummow and Kirby JJ
Even if the learned Member misinformed himself, I do not consider that the mistake of fact was relevant to his decision.[7] The significant factor, the one thing that distinguished Mr and Mrs Bernau from the other respondents, was the state of her health, the impact that moving would have on her health and the fact that, in the learned Member’s view, she could not be compensated for that consequence.
Inability to ask questions of Mrs Bernau
[7] See Re Walterscheid Australia Pty Ltd v Collector of Customs (1988) FCA 20
By an order made on 26 March 2010 Mrs Bernau had been excused from giving evidence in person, or by telephone. W & T says that this is in contravention of s 95(1) of the QCAT Act, which provides that a party must be given a reasonable opportunity to cross examine a witness.
W & T also says that, had Mrs Bernau been cross examined, the learned Member may have been able to ascertain whether there was a sum of money large enough to induce her to leave the park, notwithstanding her medical condition.
W & T knew that compensation was a necessary element of a termination order. There was a compulsory conference on August 2010 at which this issue could have been ventilated.
Mrs Bernau’s absence did not mean that the question of compensation could not be ventilated at the hearing. W & T could have asked Mr Bernau about it. If Mr Bernau needed to consult with his wife, the learned Member could have facilitated an adjournment for that purpose.
W & T did not appeal the order of 26 March 2010. The issues raised by s 95(1) of the QCAT Act must have informed the learned Member at the time and must have been considered by W & T at the time it received a copy of the decision. It cannot now complain that the tribunal procedure was flawed.
There is nothing in the learned Member’s decision that means a discussion about compensation is closed. Mr and Mrs Bernau might still be amenable to vacating if the compensation is sufficiently attractive.
Grounds on which Mr and Mrs Bernau entered the Park
There is differing evidence concerning the information about a possible redevelopment available to Mr and Mrs Bernau when they entered the park. W & T says it is unclear whose evidence the learned Member accepted. It says that Mr and Mrs Bernau knew that the park was going to be redeveloped, and decided to buy into the park in any event.
As I have previously identified, the learned Member found that the exceptional circumstance was that Mrs Bernau suffered considerable ill-health and that the loss sustained by a move could not be compensated. Although he mentioned that fact in reference to the other homeowners, there is no indication that the learned Member considered that the knowledge of a possible redevelopment was a relevant factor in the exercise of his discretion.
Mrs Bernie’s medical condition
W & T says that it would have liked the opportunity to cross examine Dr Wershon, whose evidence was largely accepted by the learned Member. However, Dr Wershon did give evidence at the hearing and was subject to lengthy cross examination. It also asks the appeals tribunal to compare the evidence of Dr Wershon with a letter from Dr East dated 21 March 2006 and to find that Dr Wershon’s evidence was “overly dramatic”.
The view that the learned Member formed is open on the material that was before him and I can find no compelling inferences to the contrary. W & T might be unhappy with the finding, but it is not a ground to overturn the learned Member’s decision.
Each of the preceding four grounds involved questions of fact (or mixed fact and law) and leave is necessary before an appeal could be brought in reliance upon them: QCAT Act s 142 (3)(d). As this analysis of each has shown, none warrants or attracts the conclusion that leave is necessary.
Prejudice
W & T says that the approval for townhouses cannot proceed while Mr and Mrs Bernau are in residence. It says that the financial loss it suffers is far in excess of any loss that Mr and Mrs Bernau may suffer.
The learned Member acknowledged the significant costs W & T would suffer if he did not terminate the site agreement but noted that W & T “was unable to specify with particularity the financial impact if the development did not proceed”. That W & T can now tell the tribunal what loss it will suffer does not make the learned Member’s decision wrong. It cannot ask the appeals tribunal to substitute a different decision simply because its case was not fully prepared at first instance.[8]
[8] See Commonwealth Bank of Australia v Quade (1991) 178 CLR 134 at 141-142
It seems to me that the parties are at crossed purposes. Section 38(1)(f) of the MH Act allows a park owner to terminate a site agreement if there is another purpose for the land. Termination on this ground necessarily requires compensation: s40(1). That compensation must have regard to the cost of relocating the home only if the home owner intends to relocate the home to another location: s40(3). That does not mean that Mr and Mrs Bernau will be forced to relocate to Nanango because that is the nearest manufactured home park that will take them. It means that, if they want to relocate to Nanango, W & T must comply with s40(3) of the Act. If, as clearly is the case, they do not want to move to Nanango, then the measure of compensation will be something different. That matter was not addressed by the learned Member, is not addressed here and cannot be a ground for a successful appeal.
The appropriate order is to dismiss W & T’s appeal.
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