W & T Enterprises (Qld) Pty Ltd v Way

[2011] QCAT 118

CITATION:		W & T Enterprises (Qld) Pty Ltd v Way, Bemi & Musgrove [2011] QCAT 118
PARTIES:	W & T Enterprises (Qld) Pty Ltd
v
Mr Errol Way, Ms Anne Bemi and Mr Kim Musgrove

APPLICATION NUMBER:   MH017-09

MATTER TYPE: Other civil dispute matters

HEARING DATE:     On the papers

HEARD AT:  Brisbane

DECISION OF: Kate Buxton, Adjudicator

DELIVERED ON: 24 March 2011

DELIVERED AT:      Brisbane

ORDERS MADE:

[1]   The Applicant pay to the Respondent, Mr Musgrove the sum of $51,871.00 within 28 days of this order.

[2]   The Applicant pay to the Respondents, Ms Bemi and Mr Way the sum of $52,025.00 within 28 days of this order.

CATCHWORDS : 

Compensation – evidence of intention to relocate – quantification of compensation

Manufactured Homes (Residential Parks) Act 2004, s 40

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	W & T Enterprises (Qld) Pty Ltd was represented by Ms Lawson
RESPONDENTS:	Mr Errol Way, Ms Anne Bemi and Mr Kim Musgrove were represented by Ms Alexandra Brook of counsel

REASONS FOR DECISION

[1]    Following the orders made by this Tribunal on 13 May 2010, terminating the Respondents’ site agreements with the Applicant, this Tribunal directed that the issue of compensation was to be determined on the papers.

[2]    I have considered, on the basis of extensive material filed by each of the parties, the issue of the compensation properly to be paid to the Respondents.  Subject to some specific departures which I will deal with below, the parties have approached the issue of compensation and, specifically, the categories of matters to be compensated pursuant to section 40 of the Manufactured Homes (Residential Parks) Act 2004 (the “Act”) in a similar fashion.  In most instances it is the quantum for each claim, rather than the entitlement to the nature of the claim itself, which is in dispute.

[3]    It is surprising, given the time which has passed since the termination order, and the opportunity afforded to all parties to present relevant submissions to the Tribunal, that there remains uncertainty as to where the Respondents will be re-locating their homes.  The consequence of this is that all the parties have had to put their submissions to this Tribunal on the basis of what is likely to happen, rather than with the precision which could have come from that certainty.  This Tribunal is therefore left with no choice but to consider all the evidence and award compensation in accordance with the outcome which, on the weight of the evidence, seems most likely.

[4]    This approach finds support in the statute.  Section 40(3) of the Act provides for various matters of which the Tribunal may have regard if the home owner “intends relocating” their home.  I am satisfied on the basis of the evidence provided, and in particular the direct evidence from each of the respondents in their statements as to their clear intention, that the homes will be moved rather than disposed of, and that this is the basis upon which the compensation ought be assessed.

[5]    Having made this determination, section 40(3) goes on to identify various “estimated” costs to the homeowner of the relocation process.  This wording contemplates that those in the position of the respondent may not be able to pin down their final costs, and that “estimating” those costs, of and incidental to re-location, is the proper process.

[6]    The Applicant has submitted that part of the compensation ought not be assessed and awarded until the respondents have obtained the necessary approvals from the Somerset Regional Council in relation to their intent to relocate their homes to the “Village Gardens” park at Lowood.[1]  Certainly, it would make more straight forward the task of assessing compensation if this level of certainty had been achieved.  However, against the analysis of the compensation provision of the Act, it is difficult to review that provision until the Applicant’s submission that the compensation question can be determined only after the Respondents have obtained such approvals from the relevant local authority to relocate their homes.  Both parties have been asked to prepare, and have prepared to the best of their abilities, their estimates based on the information currently to hand.  This Tribunal is making a final compensation order based on the available evidence as to the estimated costs of relocation, having regard to the statutory framework which section 40 of the Act provides.

[1]        Statement of Mr Way, filed 26/08/2010, paragraph 4.

[7]    This leads to the question raised in the material as to whether the Respondents should be compensated, as they have submitted, for the recoverable costs relevant to relocating their homes to Village Gardens at Lowood, rather than some other available site (such as the site mentioned in the material in Nanango).  The Respondents have plainly indicated their intention to move to Lowood and there is no material which precludes absolutely the prospect of this occurring.  The issue which has been identified by all parties is whether the local authority will grant permission for the homes to be relocated and, if so, on what conditions and at what cost.  The Applicant points to various provisions of the Building Code and local authority requirements in support of the proposition that the homes cannot be relocated to Village Gardens.  It seems to me that, on proper analysis of that material, it is possible for the homes to be relocated.  That is supported by correspondence from Village Gardens itself.[2] 

[2]        Statement of Ms Lawson, filed 2/10/2010, annexure G.

[8]    The costs which the Respondents estimate they will incur in meeting the Somerset Regional Council’s requirements are plainly costs of positioning the home in the new location and therefore fall within section 40(3)(c) of the Act.  Subject to the overarching principle that this Tribunal must make orders which are fair in all the circumstances, it follows that a reasonable estimate of the costs of compliance with the local council’s requirements to reposition the home at Village Gardens is payable to the Respondents.

[9]    I have approached the individual claims with these principles in mind.  I have adopted the helpful table provided in the Applicant’s most recent written submissions and added a column indicating the amount I consider to be the appropriate value of compensation in relation to each element of the claim.  I have also added the claim for footings which appeared to be absent from the table as prepared by the Applicant.[3]  Where further detailed reasons are required I have provided these at the foot of the table:

[3]        See statement of Mr Way, filed 26/08/2010, annexure H.

Compensation claimed by E. Way and A. Bemi (as per Annexure G of statement of Errol Way dated 25 August 2010)	Compensation claimed by K Musgrove (as per Annexure G of statement of Errol Way dated 25 August 2010)	Compensation proposed by Applicant	Compensation Ordered
Section 40(3)(a) estimated costs of removing the home from the site
UPLIFT COSTS
Building work for removal	$192.00	$192.00	$Nil	$192.00
Demolition permit	$452.00	$452.00	$Nil	$452.00
Capping off existing plumbing	$199.00	$199.00	$199.00	$199.00
Sub Total	$843.00	$843.00	$199.00	$843.00
Section 40(3)(b) estimated costs of transporting home and personal effects to the other location
Transport of home	$19,800.00	$19,800.00	$13,860.00 to E Way and A Bemi; and $17,380.00 to K Musgrove	$19,800.00
Transport of personal effects	$2,052.00	$2,052.00	$2,000.00	$2,052.00
Sub Total	$21,852.00	$21,852.00	$15,860.00 to E Way and A Bemi $19,380.00 to K Musgrove	$21,852.00
Section 40(3)(c) estimated costs of positioning the home at another location – except costs of required footing
SET DOWN FEES
Lodgement Fee	$108.00	$108.00	$108.00	$108.00
Plumbing – Minor alteration	$125.00	$125.00	$125.00	$125.00
Sewer Connection Application	$299.00	$299.00	$Nil	$299.00
Plumbing inspection	$125.00	$125.00	$125.00	$125.00
Building approval	$250.00	$250.00	$250.00	$250.00
Minimum 2 building inspections at $125 each	$250.00	$250.00	$125.00	$250.00
Re-stumping	$8,000.00	$8,000.00	Nil	$8,000.00
Sub Total	$9,157.00	$9,157.00	$774.00	$9,157.00
RELATED COSTS
Drawing of architectural plans	$1,650.00	$1,650.00	$Nil	$1,650.00
Engineers report and foundation design	$770.00	$770.00	$770.00	$770.00
Soil tests	$495.00	$495.00	$Nil	$495.00
Photographs	$30.00	$30.00	$10.00	$30.00
Sub Total	$2,945.00	$2,945.00	$780.00	$2,945.00
Section 40(3)(d) anything else the Tribunal considers relevant: proposed to be paid upon confirmation of Council approval of building application
CONTRACTORS COSTS
Electrical – Disconnect and reconnect	$482.00	$482.00	$482.00	$482.00
Plumbing – connection/disconnection	$880.00	$880.00	$880.00	$880.00
Phone – Connection	$299.00	$299.00	$125.00	$299.00
Gas – disconnect/ reconnect/ gas certificate	$571.00	$571.00	$119.99	$571.00
Replacement hot water system	$870.00	$870.00	$Nil	$870.00
Cleaning walls, windows and carpets	$400.00	$400.00	$400.00	$400.00
Repairs and painting	$4,000.00	$4,000.00	$400.00	$2,000.00
Replace 2 gas cylinders	$200.00	$200.00	$Nil	$200.00
Accommodation 4 weeks	$1,400.00	$1,400.00	$Nil to E Way and A Bemi $Nil to M Musgrove, but accommodation at applicant’s park for 3 weeks	$1,400.00
Concrete driveway/ path/ shed pad	$4,800.00	$4,800.00	$Nil	$4,800.00
Fit suitable tv antenna	$540.00	$540.00	$ Nil	$540.00
Reconstruct gardens	$1,360.00	$1,360.00	$ Nil	$1,360.00
Relocate garden shed	$627.00	$627.00	$ Nil	$627.00
Supply and install new clothesline	$533.00	$533.00	$ Nil	$533.00
Dismantle, transport reassemble car port replace rear deck	$Nil	$2,112.00	$ Nil	$2,112.00 to Mr Musgrove only
Replace rear deck	$1,782.00	$Nil	$ Nil	$1,782.00 to Ms Bemi and Mr Way only
Repairs to front veranda	$484.00	$Nil	$ Nil	$484.00 to Ms Bemi and Mr Way only
Sub Total	$19,228.00	$19,074.00	$2,406.99	$17,074.00 for Mr Musgrove and $17,228.00 for Ms Bemi and Mr Way
Miscellaneous costs associated with relocation	Not claimed	Not claimed	$1,000.00	Not awarded
TOTAL	$54,025.00	$53,871.00	$21,019.99 to E Way and A Bemi; and $24,539.99 to K Musgrove	$51,871.00 for Mr Musgrove and $52,025.00 for Ms Bemi and Mr Way

[10]  I accept the evidence in Annexures A and B to Mr Way’s statement filed 26/08/2010 and am satisfied that each of the Uplift Costs claimed represents a reasonable estimate or removal costs.

[11]  I do not agree with the Applicant’s analysis in relation to the Beygold quotes[4] for relocation of the homes.  The quotes from AM and DK McKeand Pty Ltd (Appendix G to Mr Way’s statement of 25 August 2010) include items other than the bare transportation of the home.  The rejoining work and site clearing included in the McKeand quote is recoverable either as a cost of removing, or transporting or positioning so is recoverable on that basis in any event.  The McKeand quotes provide a proper estimate of the costs set out in those quotations.

[4]        Statement of Ms Lawson, filed 6/08/2010, annexures B1(i) and (ii).

[12]  It seems plain enough that the Respondents will need some time to ensure that the homes are made good prior to returning to them, and that their belongings will need to be stored whilst this occurs.[5]  The same analysis applied to their need to accommodation whilst this occurs, and the estimate of four weeks whilst the “transportation” and “repositioning” tasks are attended to seems reasonable for both storage and accommodation.

[5]        Statement of Mr Way, filed 26/08/2010, annexure N.

[13]  I accept the Respondents’ position, based on material provided by Mr Brumpton of the regional council, in relation to the set down fees (specifically, the sewerage reconnection) and the soil test and building inspections.[6]  The respondents claim only what the local council have told them will be payable.  The architectural drawings and soil test have been proposed by consulting engineers with the relevant expertise.  Some detailed drawings of what is in existence will be required in order to prepare submissions to the local authority as to the next steps to be taken to comply with its requirements.  Whether an architect or a draftsman is required may have been a live question, but no evidence has been submitted by the Applicant as to any alternative, cheaper, costing.  The estimated architect’s fees therefore form part of the compensation.

[6]        Statement of Mr Way, filed 26/08/2010, paragraphs 7 and 8, annexure D.

[14]  I do not accept the approach taken by the Applicants in relation to what is described in this submission as “incidentals”.  The entire approach to what has been seems to overlook the fact that the Respondents currently live in a home and the function of s 40 of the Act is to compensate them for moving that home.  It can hardly be the intent of the statute for them to be left with something less, or something in a state of disrepair, when such loss is caused by the relocation of the home and is plainly within the contemplation of the statute.  The Applicant does not seriously dispute the entitlement to many of the incidentals which are apparently claimed under s 40(3)(d) (but which, in my view, could equally be claimed as being costs of positioning the home on the site).  Rather, it is the amounts which are disputed on the basis that the estimates made by the Respondents are too high.  In most instances I have accepted both the need to relocate or replace the item and the Respondents’ estimates of the amount. 

[15]  In relation to painting the Respondents each claim $4,000 and the Applicant has submitted that the sum of $400 should be more than enough to repaint the homes as necessary.  Neither claim is supported by evidence and I have no choice but to award an amount which is reasonable taking into account the size and condition of the homes and the vicissitudes of moving them.  I allow $2,000 under this head of claim for each home.

[16]  For these reasons I allow compensation under section 40 of the Act in the sums of $51,871.00 for Mr Musgrove and $52,025.00 for Ms Bemi and Mr Way.  These amounts are payable within 28 days of the date of this order.

Orders

[17]  The Applicant pay to the Respondent, Mr Musgrove the sum of $51,871.00 within 28 days of this order.

[18]  The Applicant pay to the Respondents, Ms Bemi and Mr Way the sum of $52,025.00 within 28 days of this order.