W & T Enterprises (Qld) Pty Ltd v Copeland
[2013] QCAT 301
•14 June 2013
| CITATION: | W & T Enterprises (Qld) Pty Ltd v Copeland & Anor [2013] QCAT 301 |
| PARTIES: | W & T Enterprises (Qld) Pty Ltd (Applicant) |
| v | |
| Ms Viv Copeland Mr Wayne Kereopa (Respondents) |
| APPLICATION NUMBER: | OCL161-11 / OCL162-11 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | David Paratz, Member |
| DELIVERED ON: | 14 June 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Application OCL161-11 is dismissed. 2. Application OCL162-11 is dismissed. |
| CATCHWORDS: | Manufactured Homes – Applications for termination of site agreements – Whether Tribunal has a discretion to refuse an application for termination of site agreement where the park owner wishes to use the land for another purpose – Exceptional circumstances – Health concerns as a result of moving – One resident is carer for other resident – Whether two home-owners should be compelled to live together in rented accommodation on economic grounds Manufactured Homes (Residential Parks) Act 2003 S38(1)(f) |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Applicant in person represented by it’s Director, Elaine Lawson |
| RESPONDENTS: | Ms Copeland represented by Ms Anne Bemi Mr Kereopa represented by Mr Erol Way |
REASONS FOR DECISION
Ms Copeland and Mr Kereopa live at Alex Beach Cabins and Tourist Park which is located at Alexandra Headland on the Sunshine Coast. It is a manufactured homes park.
The owner of the park is W and T Enterprises (Qld) Pty Ltd (the park owner).
The park owner has applied under s 38(1)(f) of the Manufactured Homes (Residential Parks) Act 2003 (the Act) for orders terminating the site agreements of Ms Copeland and Mr Kereopa. Those are two separate applications. The applications were heard together, and this decision applies to both applications.
A hearing with oral evidence was held on 28 March 2013. At the conclusion of the hearing, there was discussion as to possible arrangements that the parties were to investigate with a view to settling the applications.
I made a direction that the hearing was adjourned to 29 April 2013 to enable those discussions to take place, but that if no settlement was advised to the Tribunal and the applications withdrawn, that a decision in writing would be delivered without any further appearances, after that date.
No settlement was arrived at, and the applications remain on foot. This is the decision in the applications.
The Tribunal has previously considered applications in relation to this park. In W & T Enterprises (Qld) Pty Ltd v Way & Ors[1], termination orders were made in relation to three residents, and refused as to two others.
[1] [2010] QCAT 318.
The park owner wishes to use the land for a town house development. A judgment of the Planning and Environment Court dated 23 January 2009 approved the application for 138 townhouses to be built on the site.
Section 38(1)(f) of the Act provides that:-
38 (1) On application by the park owner under a site agreement, the tribunal may make an order (a termination order) terminating the agreement on any of the following grounds –
(f) the park owner wishes to use the residential park land, or a part of the park in which the site is located, for another purpose stated in the application (the stated purpose).
The park owner submitted that the effect of this section, when properly interpreted, is that the Tribunal has no discretion as to whether to make a termination order. It argues that the word “may” should be interpreted as “shall”.
In Way the learned member said that he was of the view that the tribunal did have a discretion by use of the word “may” in s 38. The park owner submits that since that decision was delivered, that s 39(3) has been included, and that the result of comparing the amended section with the relevant provisions of the previous Mobile Homes Act 1989 is that “may” in section 38(1) should be read as “shall”.
The park owner submits that the previous Act had an expression that the Small Claims Tribunal could terminate an agreement if it “considers it reasonable and just”. That expression was not included in s 38, but an expression was included in the current Act in Section 39(3) that postponement of a termination date could be ordered if the Tribunal was satisfied it was “just and equitable”. The park owner submits that by not including the “reasonable and just” expression in s 38, that the discretion of the Tribunal to refuse a termination order if grounds are shown, is removed. The suggestion is that the Tribunal only has a discretion as to postponing a termination date.
I do not accept the submissions of the park owner as to the interpretation of s 38(1). The owner’s argument is artificial and contrived. The plain and simple meaning of s 38(1) is clear and unambiguous. The section provides that the tribunal “may” make an order. The tribunal clearly has a discretion whether to make an order or not, taking into regard the matters provided by the Act.
The exercise of the discretion was commented on by the learned Member in Northshore Bayview Street Pty Ltd v Anderson[2] 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.”
[2] [2007] QCCTMH 7 at paragraph 37.
The learned member in Way quoted that passage with approval and noted:-
“47. I am of the view that the Tribunal does have a discretion that is granted by the inclusion of the word “may” in section 38. If all that had to be established was council approval for a development of the park land, the legislature would have inserted the word “shall’ rather than “may”. The section does not expressly state how the discretion is to be exercised, though the ambit of the discretion is to be discerned from the purpose and scope of the Act. The explanatory note also gives guidance to its exercise. It seems to me that this discretion should rarely be exercised against the park owner and only if exceptional circumstances are established”.
The expression “particular circumstances” is used in s 39(3) in relation to postponing a termination order for up to a year. Examples of particular circumstances are given, and include –
·the home owner’s personal and financial circumstances, including the home owner’s health, age and mobility
·the availability and location of alternative accommodation at a similar cost
·any other financial or social considerations the tribunal considers appropriate
These indicators of particular circumstances are of assistance in determining whether exceptional circumstances exist.
Ms Copeland and Mr Kereopa are close friends. Further than that, Ms Copeland is the carer for Mr Kereopa.
Mr Kereopa is 66 years of age. He is not employed, and his only source of income is a Disability Pension of $386 per week. His site rent at the park is $138.65 per week.
He purchased his home in the park for $68,000 using his entire life savings, and moved in on 19 February 2003.
He suffers from Angina, Ischaemic Heart Disease, Hypertension, Type 2 Diabetes, peripheral vascular Disease, deafness, Eye Disorders, cataracts on both eyes, numerous disorders associated with two strokes, depression, and a recently diagnosed cyst or tumour on the pancreas currently under investigation.
He visits his General Practitioner, Dr Jenny Cooke, at least once a week.
As a result of his two strokes, he has severe weakness down his right side which gives him very little use of his right hand and makes walking very difficult. He needs a stick, walking frame and mobility scooter to move about. He has falls due to Hemiparesis. He has some difficulty in speaking clearly.
He was not available to give oral evidence on medical grounds.
Dr Cooke gave evidence. She described Mr Kereopa as being in a “not good situation”. She said that he spends most of his time in a wheelchair, that he has regular falls and sees specialists regularly. She said that the time will come when he cannot live independently, but that he could continue to live in his current home in the park for a “number of years” with the care of Ms Copeland.
Dr Cooke did not think that Mr Kereopa could cope with moving at all. She said that he would have to be somewhere pretty close to his current home to be near his medical assistance. She said that he will not get any better, but that he will only get worse physically.
Dr Cooke noted that Ms Copeland checks on Mr Kereopa several times a day, and is a carer for him. The Doctor said that if he was separated from Ms Copeland that she would have concerns for him. She said that Ms Copeland supports Mr Kereopa emotionally as well as physically, and that there was a relationship of trust and friendship that could not be easily replaced. She said that the rapport between them was essential and key to the well-being of both of them, and especially to Mr Kereopa.
The Doctor said that Mr Kereopa could walk up two steps with difficulty, but that he could not live on his own. She thought he could only move if all the costs, work and stress were taken out of his hands, and everything was arranged for him.
In her statement dated 11 February 2013, Dr Cooke noted that Mr Kereopa had been under long term and increasing stress relating to attempts to remove him from his home. She noted that his depression had worsened recently, as a direct result of stress relating to this, to the point of parasuicide, and he was now undergoing additional treatment and support for that. She said that this ongoing stress will accelerate medical complications for him and even hasten his demise. She said that he needed to remain in a location where he has easy access to his medical care providers as he has now.
Mr Peter Esser, Clinical Psychologist, has been treating Mr Kereopa since September 2012. In his report dated 11 February 2013 he noted that –
It is reasonable to expect that any significant change to Mr Kereopa’s living arrangements will have an impact on his health. He potentially faces not only a change in residence, but also a change in financial state, change in living conditions, change in social activities, and loss of significant relations in the form of his current carer, Viv Copeland, as well as his treatment team. It is important to note that such changes are known to have cumulative effects and, given his vulnerability, can be predicted to have seriously deleterious effect on all aspects of his health. Such impact is already evident in the anticipatory distress in response to the possibility of relocation.
Mr Esser gave oral evidence, saying that Mr Kereopa and Ms Copeland had a close relationship, and that any separation would be a loss for both of them.
Mr Esser said that a move of residence for Mr Kereopa would be serious, that Mr Kereopa could not cope, and that he would be very concerned about Mr Kereopa’s health physically and psychologically in that case. He described Mr Kereopa’s conditions as chronic, that he needed ongoing care, and that with ageing these conditions would have a greater impact.
When asked about a move of residence for Mr Kereopa, Mr Esser said that the further away that he was to move, the greater the stress would be. He said that moving 100 metres down the road would be a minimal degree of change, but that if he were to move further it would mean more stress.
Mr Kereopa notes that Dr Cooke’s surgery is located less than a kilometre from his home, and other medical services upon which he relies are located within 5 kilometres of his home, and include Pathology. Optometry, Audiology, Radiology, Psychology, and Physiotherapy.[3]
[3] Kereopa affidavit, paragraph 15.
Ms Copeland is 72 years of age, and a widow. Her source of income is an Aged pension of $386.30 per week and a carer allowance of $57.00 per week. She purchased her home in the park in December 2002 for $53,000 using almost all her life savings. Her site rental is $138.65 per week.
She has been the carer for Mr Kereopa for nine years. She supervises his medication, obtains medical prescriptions and supplies, transports him to appointments with doctors and health care professionals, cooks meals, washes clothes, shops for his requirements and takes him to visit family or friends.
She has a number of medical conditions herself, including Angina, Ischaemic heart disease, hypertension, peripheral vascular disease, and polymyalgia rheumatica. She is also treated by Dr Cooke.
Dr Cooke described Ms Copeland as being stressed and anxious a lot of the time. She said that moving from the park would cause Ms Copeland massive stress, but that if she was properly supported in the move, and there were satisfactory arrangements, then moving was something she could cope with.
The park owner has proposed that Ms Copeland and Mr Kereopa should obtain a 2 bedroom rental property in the vicinity of the park, and live together.
The park owner argues that if Ms Copeland and Mr Kereopa relocate their homes to another park, and rent them out, that they would have sufficient income to pay the rent on a 2 bedroom apartment.
Mr Kereopa stated in an affidavit that the cost of private rental properties was beyond his means because the lower end rental properties lease for close to $300 a week, which would mean that even after the rental subsidy of $61 per week, he would have less than $150 per week to provide for all his needs. He states that the owner has offered him $25,000 to buy his home, but he would not then have sufficient money to buy another manufactured home in a local park.
Ms Copeland similarly states that she cannot afford to pay private rental of $250 to $300 per week. She says that she has been offered $20,000 by the owner to buy her home, but that to buy another manufactured home in another park would cost about $150,000.
Section 40 of the Act provides that if a termination order is made, that the Tribunal must in conjunction with the order, make an order as to compensation that the park owner pay the home owner. The compensation order is to have regard to matters including removal and relocation costs of the home and moving costs of the home owner.
There is no possibility of the home owners finding a space to relocate their homes to in the near vicinity of Alexandra Headland, or on the Sunshine Coast in general. The park owner has suggested moving the homes to Esk in the Brisbane Valley, which is an inland rural setting, where each could be rented out for $180 per week.
Ms Copeland and Mr Kereopa are currently living in a stable environment which they can financially manage. They are in familiar and well-serviced surroundings.
The park owner is proposing that they move in and live together for mutual assistance and on financial bases. There are two important difficulties with the park owners proposal:-
(1) What if Ms Copeland and Mr Kereopa do not want to live together?
(2) What is to happen if they commit jointly to the rental of a 2 bedroom unit near the park, but then one of then becomes ill and has to move to a care facility? How would the remaining person be able to financially manage?
The prospect of Ms Copeland and Mr Kereopa moving into one dwelling together has been raised as a possibility. In his affidavit Mr Kereopa states that he is no longer able to live on his own[4] - I take that to mean that he is unable to live without assistance, when read together with the rest of his affidavit[5] where he says “I would not be able to function independently were it not for her dedicated assistance”.
[4] Affidavit Wayne Kereopa 12 February 2013, paragraph 11.
[5] Affidavit Wayne Kereopa, 12 February 2013, paragraph 13.
Mr Kereopa has been advised that he could apply for a 2 bedroom Housing Commission dwelling, but that it was unlikely that he would be allocated one due to the number of persons on the waiting list. This does not mean that such a situation is his preference.
In her statement Ms Copeland has canvassed buying a 2 bedroom home jointly with Mr Kereopa if sufficient compensation were available.[6] This would be a different situation to renting a 2 bedroom unit, as there would be financial security if they were joint owners. That proposal is not financially available however.
[6] Affidavit Vivienne Copeland, 20 February 2013, paragraph 28.
Ms Copeland and Mr Kereopa presently live independent but interdependent lives. They each have their own home. There is no indication that they wish to live together. I do not consider that they should be forced to live together simply for economic reasons, and because that seems to be an elegant economic solution to the park owner. Such a compelled solution would be an intrusion on their basic freedoms and dignity.
The dilemma of what would happen to the remaining person if they were to live together, and one was required to leave the shared rented unit, is unaddressed and unanswered by the park owner, and is a significant issue.
Ms Copeland has medical issues of her own, but on the evidence, it would appear that with adequate compensation, she could relocate if suitable arrangements could be made.
However, Ms Copeland and Mr Kereopa are inextricably bound together by bonds of friendship, familiarity and need. They have a symbiotic relationship.
If Ms Copeland were separated from Mr Kereopa by any great distance, then she would be unable to assist him and care for him as she does at present. No proposal has been put forward whereby she would be able to move from the park and obtain separate accommodation in the near vicinity of the park.
It is clear that Mr Kereopa would suffer significant risk to his health if he were required to leave the park. He would lose his support network, his ready access to established medical services, and would suffer extreme and dangerous stress.
I consider that exceptional circumstances exist in relation to Mr Kereopa that argue strongly against a termination order being made.
Ms Kereopa’s life is bound up with that of Ms Copeland. One of the most important factors in his life is her continuing care.
No realistic option has been put forward whereby Ms Copeland could leave the park and still provide the same level of care and support to Mr Kereopa. If she were required to leave the park and be unable to care for him, then the effect on Mr Kereopa, who I have found is dependent upon her, and to whom exceptional circumstances apply, would be extremely serious and possibly disastrous.
I therefore consider that in the circumstances of this case, that the exceptional circumstances of Mr Kereopa extend to, and necessarily involve Ms Copeland, to the extent that exceptional circumstances also apply to her.
Accordingly, I find that exceptional circumstances apply to both Ms Copeland and Mr Kereopa, and that the discretion under s 38(1) should be exercised against a termination order being made.
The applications for a termination order in each application are dismissed.