W & T Enterprises (Qld) Pty Ltd v Bernau - [2010] QCATA 71

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)
Manufactured Homes (Residential Parks) Act 2003 ss 4, 38(1)(f), 38(2), 40(1), 40(3)
Mobile Homes Act 1989
Queensland Civil and Administrative Tribunal Act 2009, ss 3(b), 4(d), 95(1), 142(3)

Bayview Street Pty Ltd v Anderson [2007] QCCTMH 7, applied
Chambers v Jobling (1986) 7 NSWLR 1, cited
Commonwealth Bank of Australia v Quade (1991) 178 CLR 134 at 141-142, cited
Dearman v Dearman (1908) 7 CLR 549, cited
Fox v Percy (2003) 197 ALR 201 at 207, 208, cited
Haraba Pty Ltd v Castles [2007] QCA 206, applied
Re Walterscheid Australia Pty Ltd v Collector of Customs (1988) FCA 20, cited
W & T Enterprises (Qld) Pty Ltd v Errol Way & Ors [2010] QCAT 318, cited

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read W & T Enterprises (Qld) Pty Ltd v Bernau and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2010] QCATA 71
Decision Date: 16 November 2010

CaseChat Overview and Summary

The appellant, W & T Enterprises (Qld) Pty Ltd, brought an appeal against a decision made by the Member of the Queensland Civil and Administrative Tribunal. The appeal centred on the termination of a site agreement for a manufactured home park. The respondent, Bernau, argued for the termination based on the park owner's approval for redevelopment, while the appellant sought to continue the agreement despite the respondent's ill health. The tribunal had to decide whether the tribunal had the discretion to not terminate the agreement under exceptional circumstances and whether the respondent's ill health constituted such an exceptional circumstance.

The tribunal addressed several legal issues, primarily whether it had the discretion to not terminate the agreement and if the respondent's ill health could be considered an exceptional circumstance warranting such discretion. The tribunal concluded that the discretion to not terminate the agreement did exist, but it was not exercised in this instance because the exceptional circumstances did not sufficiently outweigh the need for redevelopment. The tribunal further held that the respondent's ill health did not qualify as an exceptional circumstance that would justify the tribunal's refusal to terminate the agreement. The tribunal also considered the procedural issue of whether it erred in excusing a witness from giving evidence and whether new evidence introduced by the appellant should be accepted in the appeal.

The tribunal dismissed the appeal, affirming that the tribunal's decision was not erroneous. The tribunal found that the Member did not abuse the discretion by refusing to terminate the agreement, as the exceptional circumstances did not apply. Moreover, the tribunal ruled that the Member did not err in excusing the witness, and the new evidence introduced by the appellant did not warrant a change in the decision. The tribunal's orders confirmed the dismissal of the appeal, upholding the original decision of the Member.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.