W & T Enterprises (Qld) Pty Ltd v Way
[2010] QCATA 323
•30 November 2011
| CITATION: | W & T Enterprises (Qld) Pty Ltd v Way & Ors [2010] QCATA 323 |
| PARTIES: | W & T Enterprises (Qld) Pty Ltd (Applicant) |
| v | |
| Mr Errol Way Ms Anne Bemi Mr Kim Musgrove (Respondents) |
| APPLICATION NUMBER: | APL143 -11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Kingham, Deputy President Susan Gardiner, Member |
| DELIVERED ON: | 30 November 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The appeal is dismissed. |
| CATCHWORDS: | APPEAL – ERROR OF LAW – where the Tribunal directed the site owner pay compensation to home owners who are relocating their manufactured homes after the Tribunal terminated the site agreement on the application of the site owner – whether Tribunal wrongly awarded compensation for certain items, including landscaping costs at the new site Acts interpretation Act 1954, s 14A Day and Dent Constructions Pty Ltd v North Australian Properties Pty Ltd (1982) 40 ALR 399 applied |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).
REASONS FOR DECISION
Mr Errol Way, Ms Anne Bemi and Mr Kim Musgrove are owners of manufactured homes formerly situated in a residential park on the Sunshine Coast owned by W & T Enterprises (Qld) Pty Ltd. On application by W & T, the Tribunal terminated the site agreements. It then determined compensation on the documents filed and without the parties appearing at an oral hearing.[1]
[1]Queensland Civil and Administrative Tribunal Act 2009, s 32(2).
This appeal by W & T relates to the Tribunal’s award of three items of compensation to Mr Way, Ms Bemi and Mr Musgrove. They were:
(a) $4,800 for concrete driveway/path/shed pad;
(b) $1,360 for “reconstruct gardens”; and
(c) $2,000 for “repairs and repainting”.
With respect to the first and second items, W & T argued the Tribunal did not have the power to make an order to compensate for these items because they fell outside the matters contemplated by the relevant provision of the Manufactured Homes (Residential Parks) Act 2003 (s40(3)).
With respect to the third item, W & T argued the Tribunal could not make an award in the absence of an estimate of the costs.
Both arguments turn on the interpretation of the compensation provisions of the Manufactured Homes Act.As the appeal raises only questions of law, leave to appeal is not required.[2]
Can the Tribunal award compensation for the cost of constructing a driveway, paths and shed pad and for reconstructing gardens?
[2]Queensland Civil and Administrative Tribunal Act 2009, s 142.
Each of these items relates to immovable improvements to the sites on which the manufactured homes were located. The Standard Terms of a Site Agreement under the Manufactured Homes Act require the owner’s consent to any additions external to the home. The park owner may not withhold consent unreasonably.[3] The site owner did not allege the improvements were unauthorised, rather that the cost of establishing similar improvements at a new site cannot be compensated for under the Manufactured Homes Act.
[3]Manufactured Homes (Residential Parks) Act 2003, ss 14, 25; Form 2 Cls 5.2.4, 5.2.6.
Section 40 provides, relevantly:
(1) This section applies if the tribunal intends making a termination order, in relation to a site agreement, on the ground mentioned in section 38(1)(f).
(2) The tribunal must, in conjunction with the order, make an order (the compensation order) that the park owner pay the home owner compensation for the termination of the agreement.
(3) if the home owner intends relocating the manufactured home to another location if the termination order is made, the tribunal may have regard to the following when making the compensation order –(a) the estimated costs of removing the home from the site;
(b) the estimated costs of transporting the home and the home owner’s personal effects to the other location;
(c) the estimated costs of positioning the home at the other location;
(d) anything else the tribunal considers relevant.
Section 38(1)(f) of the Manufactured Homes Act provides the Tribunal may terminate a site agreement, on the application of a park owner who wishes to use the residential park land, or a part of the park in which the site is located, for another purpose. The compensation provision applies, then, to early termination for reasons unrelated to the conduct of the homeowner.
The learned adjudicator did not state the basis upon which she included each of the disputed items, in specific terms. More generally, she stated it is the intent of the statute that when a loss is caused by the relocation of the home, it is plainly within the contemplation of the statute that it is compensated for.[4]
[4]W & T Enterprises (Qld) Pty Ltd v Way & Ors [2011] QCAT 118 at [14].
W & T argued the purpose of s 40 is to compensate homeowners for the cost of relocating their homes and their personal effects but not to re-establish immovable improvements to the site they are required to vacate. It relied on a decision of the former Commercial and Consumer Tribunal in support of that submission. In Northshore Bayview Street Pty Ltd v Anderson,[5] the learned member said:
The general words in subsection 40(3)(d) must be read down to include only matters within the category of relocation costs.
[5]Northshore Bayview Street Pty Ltd v Anderson [2007] CCT MH029-05 at [46].
W & T argued these disputed items are not relocation costs; the homeowners argued they are.
The dispute between the parties is not to the point. The question is not whether they are relocation costs but whether they relate to the loss suffered by the homeowners due to the Tribunal terminating their agreement.
Respectfully, we decline to interpret s 40(3)(d) in the way proposed by the learned Member in Northshore’s case. Although she did not say so, it is apparent the learned Member who presided in that case applied the ejusdem generis principle:
When general matters are referred to in conjunction with a number of specific matters of a particular kind, the general matters are limited to things of the like kind to the specific matters.
Applying that principle to s 40(3)(d), anything else the tribunal considers relevant would read as if it said anything else of a like kind to the matters specified in (a), (b) and (c) that the tribunal considers relevant.
The ejusdem generis principle does not always apply when a provision contains both general and specific words. Whether it does so, depends on the words used and the context of the particular provision.
Generally, the words of a statute are interpreted according to their ordinary meaning. On its face there is nothing in the phrase anything else the tribunal considers relevant to suggest full scope should not be given to its ordinary meaning. It suggests that it is a matter for the Tribunal to determine if anything, other than the items specified in (a), (b) and (c), are relevant.
That does not mean that the Tribunal’s consideration is at large. The words must be interpreted in their context.[6] That context is that the Tribunal must make an order to compensate for termination of the agreement (s40(2)) and, when making the order, may have regard to specified matters, including anything else the tribunal considers relevant (s40(3)).
[6]R v Regos and Morgan (1974) 74 CLR 613, 623.
The limitation on the matters to which the Tribunal may have regard is relevance to the purpose of the compensation order. That is an orthodox approach to assessment of damages. It precludes an award for loss that is too remote from the event the compensation is intended to remedy.
We do not consider there is any ambiguity of meaning in the words used in s 40(2) and (3). In interpreting a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation.[7]
[7]Acts Interpretation Act 1954, s 14A.
Plainly enough, the purpose of the provision is to require park owners to compensate homeowners for the loss the homeowners suffer because the agreement is terminated early, and for a reason unrelated to their compliance with the terms of the site agreement.
The interpretation we have adopted is also consistent with the liberal approach taken in construing remedial provisions.[8]
[8]Day and Dent Constructions Pty Ltd v North Australian Properties Pty Ltd (1982) 40 ALR 399, 415.
Adopting that approach, the question the Tribunal must consider is whether the items awarded compensate the homeowners for a loss they will suffer because the agreement is terminated, bearing in mind their intention to relocate their homes. Whether or not they are costs of relocating the homes, is a distraction.
There seems to be no dispute the new sites will not have equivalent improvements to those on the sites the homeowners were required to vacate. The homeowners have suffered that loss because the Tribunal has terminated their agreements. Their loss will be compensated for, if the park owner pays the estimated cost of re-establishing those improvements on the new sites.
The learned Adjudicator correctly conceived the Tribunal’s function in making a compensation order. We see no error in the approach she adopted in including these items in calculating the compensation orders.
Repairs and Repainting
Neither homeowner provided a quote for repainting, although the park owners seemed to accept that some repainting would be required. W & T argued the Tribunal could not make an award for “repairs and repainting” without an estimate of costs. This submission was predicated on the assumption that the item was awarded under s 40(3)(d) and that it should be interpreted, consistently with the preceding sub-paragraphs (a), (b) and (c), to require an estimate of costs before an allowance could be made for the item. Again, W & T relied on the decision in Northshore’s case.
We are not persuaded the approach adopted in that case means a home owner must have an estimate of costs for an item before an award may be made under s 40(3)(d). Even if it does, for reasons already given, we do not agree with and have not adopted the interpretation of s 40(3)(d) by the learned Member in Northshore.
The Tribunal’s obligation is to award compensation. This necessarily involves some level of hypothesis and pragmatism, especially when, as for these matters, compensation is determined before the full extent of the loss is realised or readily calculable. Difficulty in assessing damage does not relieve the Tribunal from estimating it as best it can.[9]
[9] Fink v Fink (1946) 74 CLR 127, 143.
The learned Adjudicator fulfilled the function conferred on the Tribunal and, in our opinion, properly did what she could on the material before her to calculate a reasonable award to compensate the homeowners for the effect of the agreements being terminated. The award is not excessive. We see no error in the learned Adjudicator’s approach.
The appeal is dismissed.
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