W & T Enterprises (Qld) Pty Ltd v Way
[2010] QCAT 318
•6 May 2010
CITATION:W & T Enterprises (Qld) Pty Ltd v Way & Ors [2010] QCAT 318
PARTIES: W & T ENTERPRISES (QLD) PTY LTD
v
ERROL WAY and OTHERS
APPLICATION NUMBER: MHO17-09
MATTER TYPE: Other civil dispute matters
HEARING DATE: 27 & 28 April 2010
HEARD AT: Brisbane
DECISION OF: S W Sheaffe
DELIVERED ON: 6 May 2010
DELIVERED AT: Brisbane
ORDERS MADE:
The site agreement in existence between Anne Maree Bemi and Errol Brian Way, and the applicant is terminated and such termination to be effective on the 18 June 2010 and Anne Marie Bemi and Errol Brian Way are required to give vacant possession of the site on or before termination day.
The site agreement in existence between Kim Musgrove and the applicant is terminated and such termination to be effective on the 18 June 2010 and Kim Musgrove is required to give vacant possession of the site on or before termination day.
The matter is adjourned for a directions hearing on the issue of compensation.
The application for a termination order against Mr and Mrs Bernau is dismissed.
CATCHWORDS: Termination orders, jurisdiction and discretionary factors. , S38 (1) (f) of the Manufactured Homes (Residential Parks) Act 2003
APPEARANCES and REPRESENTATION:
The applicant appears by their director Elaine Lawson (a solicitor)
Alexandra Brook (counsel) for the respondent
REASONS FOR DECISION
Introduction
On 17 June 2009 W & T Enterprises (Qld) Pty Ltd (“the applicant”) filed three applications against different home owners seeking orders that their site agreements be terminated pursuant to section 38 (1) (f) of the Manufactured Homes (Residential Parks) Act 2004 (“the Act”).
Proceeding MH017-09 was filed against Errol Way and Anne Bemi whose manufactured home is situated at site 72, proceeding MH018-09 was filed against Dieter & Kerrie Bernau whose home is situated at site 69 and proceeding MH019-09 was filed against Kim Musgrove whose home is located at site 115.
On or about 20 July 2009 the applicant amended the three applications by attaching the judgment of His Honour Judge Robertson approving the development application of multiple dwelling units on the park land. It was accepted by the parties that the judgment stands as the applicant’s development approval.
On 9 September 2009 the applications MH019 and MH018 were consolidated with application MH017-09 and proceeded as MH017-09 for the purposes of determining whether a termination order should be made pursuant to section 38(1) (f) of the Act and the application was to be limited to this issue. In the consolidated proceedings there are five respondents: Errol Way & Anne Bemi, Dieter & Kerrie Bernau and Mr Kim Musgrove (“the respondents”) but with three site agreements and three manufactured homes.
On 6 October 2009 a direction was given by the Tribunal that in the event that the Tribunal intended making compensation orders pursuant to section 40 of the Act, the application is to be listed for a directions hearing. The application before me was limited to whether a termination order should be made and the compensation applications, if required, were to be determined at a future date
Background
10.This dispute concerns a mixed use park located at 21-23 Okinja Road, Alexandra Headland and more particularly described as Lot 4 on RP 161 024 The site contains 2.58 hectares. The park is a residential park as defined in section 12 of the Act (“the park”)
11.The park was originally owned by S.J. Tickle & Sons Pty Ltd. On 21 July 1997 the applicant, jointly with Yalkari Pty Ltd, purchased the park for a price of $2m and then on 30 August 2002 the applicant became the sole owner when it acquired the interests of Yalkari Pty Ltd for a price of $1, 081,502. At the time of the purchase the park was named Alexandra Gardens but subsequently its name was changed to Alex Beach Cabins and Tourist Park.
12.A plan of the park revealed that it contained 128 sites, many of which are occupied by caravans and cabins that satisfy the tourist market. Fifteen sites are occupied by manufactured homes as defined in section 10 of the Act, the owners are home owners as defined in section 8 and a site agreement as defined in section 14 is in existence with respect to these 15 home owners.
13.The fifteen home owners have been in occupation for many years and certainly prior to the introduction of the 2004 Act. In each case the site agreements were form 1 agreements entered into pursuant to the terms of the now repealed Queensland Mobile Homes Act 1989. It is agreed between the parties that the three site agreements for the respondents were in identical terms (“the site agreement”).
14.The respondents were not the original occupants of their respective manufactured homes. In each case the original occupants assigned their site agreements to the respondents. Errol Way and Anne Bemi acquired their home from a Mr Cunningham and the assigned site agreement was dated 9 March 1990. Mr Mosgrove has been a resident of the park since 1997 and bought his home from a Mr Elms and Mrs Smoothy. Mr and Mrs Bernau purchased their home from a Mr Thornton in about 2003.
15.On 4 May 2003 the applicant advised the home owners that the applicant intended to redevelop the park.
16.In April 2007 the applicant submitted an application to the Maroochy Shire Council for a material change of use (141 units) for the park land. This application was a code assessable application meaning that public notification was not required and objections could not be made.
17.At an ordinary Council Meeting held on 28 November 2007 the Council refused the development application. The home owners agreed that some of them had orally opposed the application and had discussions with the Councillors to present their opposition to the proposed development. The applicant appealed the decision of the Council to the Planning and Environment Court and on the 23 January 2009 the Court allowed the appeal and approved the development. His Honour Judge Robertson’s order does not expressly state that it was made by consent, but it was acknowledged that his honour made the orders without a trial and by the consent of the applicant and the Maroochy Shire Council.
18.The applicant seeks a termination order with respect to the three site agreements. The applicants have offered to pay compensation and to relocate the homes to Nanango.
Site agreement
19.The site agreement contained four distinct parts: Part II is headed “Information” and provided, so far as relevant:
A Small Claims Tribunal will not make an order permitting the park owner to terminate his agreement with you unless-
A.The Tribunal is satisfied that the grounds on which the application for the order is based has been made out: and
B.The Tribunal is satisfied that the making of the order is reasonable and just in the circumstances
20.Part III of the site agreement is headed “Implied Terms” and contains clauses 3 & 4 which are terms that concern terminations by both the occupier (meaning the home owner) and the park owner.
Termination by the occupier
3.The occupier is entitled to terminate by notice in writing given to the park owner not less than four weeks before the date on which it is take effect.
Termination by the Owner
4.The park owner is entitled to terminate the agreement forthwith, if, on his application, a Small Claims Tribunal is satisfied that-
(a)…..
(f) the relevant Local Authority has granted its approval of the use of the site for a purpose other than as a site:
and the Small Claims Tribunal considers it reasonable and just in the circumstances for the agreement to be terminated.
Mobile Homes Act 1989
21.At the time the respondents entered into their site agreements, sections 3 & 4 of the Mobile Homes Act 1989 were the relevant provisions concerning termination of a site agreement. These sections expressly provided:
Termination by Occupier
Termination by the owner.
- The occupier is entitled to terminate the agreement by written notice given to the owner not less than 4 weeks before the date on which termination is to take effect.
- The owner is entitled to apply to a small Claims Tribunal for an order that permits termination of the agreement and, subject to the order being made, is entitled to terminate the agreement on any of the following grounds:
(a)…
(f) the relevant local government has granted its approval of the use of the site for a purpose other than a site.
Manufactured Homes (Residential Parks) Act 2004 (“the Act”)
22.The Mobile Homes Act 1989 was repealed by the Act and section 38(1) of the Act concerns termination. This section provides, so far as relevant.
38 Termination of site agreement by tribunal
(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.(a)…
(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)
(2) ……
(3) An application for a termination order on the ground mentioned in subsection(1)(f) must be accompanied by a document certified by the local government for the local government area in which the residential park is situated stating it is lawful for the park land, or a part of the park in which the site is located, to be used for the stated purpose.
40 Compensation may be payable in particular circumstances
(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 accordance 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 owners 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.
(4) Subsection (5) applies if-
(a) the home owner intends disposing of the manufactured home if the termination order is made:
Applicant’s submission
23.The applicant submitted that the Tribunal has jurisdiction to make the orders requested. They submitted that on a strict interpretation of the express words of section 38(1) (f) the two elements were satisfied, namely the park owner wishes to use the residential park land for another purpose stated in the application. The two elements concern the park owner’s wishes and the existence of another purpose.
24.Further, it was submitted that, even if the section requires that the applicant have a bona-fide intention, that is met by its intention to build the townhouses as specified in the development application. Ms Lawson invited the tribunal to accept her evidence where it conflicted with Raisa Conchin. It was suggested that Ms Conchin was confused at the time of the telephone conversation.
25.Further, it was sworn that the words “bona-fide intention to use” should not be adopted to explain the meaning of the expression as the legislature would have included these words if this was its intention.
26.It was also submitted that in exercise of the Tribunal’s discretion there is nothing to show exceptional circumstances. It was said that the applicant would be prejudiced by the refusal to make the orders requested.
27.It was submitted that the home owners should be relocated to Nanango.
Respondent’s submissions
28.The respondents submitted that the jurisdiction of the Tribunal has not been invoked. It was submitted that the applicant must establish a present intention to implement the approved building plans and the Tribunal was invited to accept the evidence of Ms Conchin and find that there was no present intention by the applicant to build the townhouses. They say the applicant intends to re-apply for approval to build a tourist type resort.
29.Secondly, it was submitted that as a quasi jurisdictional issue there must be a comparable park available for relocation.
30.Finally, in exercise of the discretion it was submitted that there are clear exceptional circumstances.
FINDINGS AND OBSERVATIONS
31.The applicant has applied for an order terminating the site agreements pursuant to section 38 (1) (f) of the Act.
Jurisdiction
32.The respondents submitted that the jurisdiction conferred by s38 (1) (f) of the Act had not been invoked on the basis that the applicant does not wish to use the land for the stated purpose, namely the development of 138 townhouses.
33.In support of this submission the respondents relied almost exclusively on the evidence of Ms Raisa Conchin of a telephone conversation that occurred between her and Ms Lawson on the 28 May 2009. Ms Conchin, a solicitor employed with Brian Bartley and Associates was admitted to practice as a solicitor on the 30 January 2006. This firm of solicitors acted for Mr Way with respected to a letter dated 18 May 2009 that he had received from the applicant. Mr Way sent the letter to Ms Conchin and sought her legal advice. Consequently, Ms Conchin rang Ms Lawson, had a lengthy 40 minute telephone conversation and recorded her understanding of what was said in a diary note. The content of the conversations and the meaning of what was said were hotly disputed by the two women. Basically, Ms Conchin stated that Ms Lawson said to her that the applicant had only obtained the current approval, which was a code assessable approval so they could apply for termination orders and once these terminations orders were granted an impact assessable approval for another type of development would be sought. Inferentially, she was saying that the applicant had no intention of developing the land in accordance with the development approval.
34.It was also submitted that Ms Lawson made inconsistent statements. It was submitted that the use of the words “real intention” prove there was a distinction between her “intention” and her “real intention”. The respondents also seek to rely on the contents of an email dated 3 August 2009.
35.In response, Ms Lawson said that Ms Conchin must have been mistaken or confused as to the content of the telephone conversation. She said that she was referring to an operational works assessment and not a further development application. Ms Lawson stated many times and I accept her evidence unequivocally that it was and still is the intention of the applicant to build the townhouses as provided for in the approval. She said the applicant has no intention of building any other facility and has no intention to apply for an impact assessable development. The applicant has spent in excess of $150,000 for the approvals and in their opinion the development of the units would give the best financial return. Further, Ms Lawson stated that the tourist market is depressed and a tourist facility would not give the best financial return. So much so, when Ms Cochin’s version of what was orally said in the telephone conversation was written in the letter dated August 2009 Ms Lawson wrote and said that all the future communications must be in writing. This response was given so any future confusion was avoided.
36.I accept the evidence of Ms Lawson on this issue. I am of the view it is fanciful for a park owner to spend over $150,000 on a proposed development without intending for that development to proceed. In the 40 minute telephone conversation Ms Conchin must have misunderstood or was confused as to what was stated and I find accordingly. This is not an unreasonable suggestion as the use of expressions such as code assessable approval, impact assessable approval, approvals for operational works and other approvals can easily lead to confusion. I accept the submission by Ms Lawson that Ms Conchin must have been confused as to what was being discussed and I also accept the evidence that the applicant had and still has the intention to build the town houses as provided for in the building approval. I do not accept the submission by the respondent that the applicant had sought a code assessable approval for the purpose of terminating the site agreements and after that occurs another development will be pursued.
37.I also reject the submission that the expression “real intention” shows that the applicant had an alternative intention. It is clear to me that the applicant had and still has the intention to build the townhouses.
38.I am of the view that for section 38 (1) (f) to apply the applicant must have a wish to use the residential park land for the other purpose stated in the application. Further, subsection 38 (4) provides that the application must be accompanied by a document certified by the local authority that it is lawful for the parkland to be used for the stated purpose. It was conceded that the order of the court dated 23 January 2009 is sufficient proof that the proposed development into units or townhouses is a lawful use for the park land. I am also satisfied that the application specified that the stated purpose was to construct 138 townhouses or a development of 138 townhouses. Furthermore, I am satisfied that the applicant wishes to use the residential park land for this purpose.
39.I am satisfied that the tribunal’s jurisdiction has been invoked.
40.The respondent also submitted that a quasi-jurisdictional issue defeats the claim for a termination order, namely a comparable park does not exist in the locality. It was submitted that when the Act was enacted the social circumstances were different and there were an abundance of available sites in the locality but in recent times there are no other available sites.
41.The evidence was overwhelming that there are no sites available at any of the manufactured home parks on the Sunshine Coast that could house these home owners. The only park that has sites available was at Nanango, over 150 kilometres west of the existing park. Ms Lawson conceded that she contacted all the parks on the Sunshine Coast and was informed that sites were not available to house these manufactured homes. This evidence was corroborated by the respondent’s witnesses. I accept this evidence and find that there are no available park sites on the Sunshine Coast to where this group of home owners could relocate their homes. All parties accept that vacant homes sites are not available on the Sunshine Coast.
42.The use of the expression quasi jurisdictional in the submission is odd as the Tribunal either has jurisdiction or it does not have it. For the Tribunal to have jurisdiction the matters listed in section 38 (f) must be established, namely the park owner wishes to use the residential park land for another purpose stated in the application. I am satisfied that these issues are satisfied and the Tribunal does have jurisdiction to grant the termination orders. I reject the submission that the jurisdiction is only enlivened if comparable parks are available. If this was a preliminary requirement the legislature would have said so and it has not. Furthermore, in an isolated community another park or a comparable park may not exist in the locality. If the respondent’s submission was correct a termination order could never be made pursuant to s38 (1) (f) for the home owners of a park in these isolated community.
43.The final issue concerns the exercise of the discretion.
44.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[1] 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”.
[1] [2007]QCCTMH 7 at paragraph 37.
45.Ms Lawson submitted that the Explanatory Notes to the Manufactured Homes (Residential Parks) Bill confirms that the parliament recognised the right of the park owner to redevelop the park land or change the use for of the land. The Explanatory Notes relevantly provide:
An underlying problem is the basic tension between home owners and park owners largely caused by different social and economic perspectives. Home owners are generally on low and/or fixed incomes. They have invested substantial amounts of money in purchasing homes, often for retirement purposes, and need security of tenure for the sitting of the home in a residential part at a rent level commensurate with the capacity to pay.
A new concern is that recent rapid increases in land prices have placed added pressures on the industry as parks located in prime real estate locations become attractive to developers. Generally, these parks are more likely to be mixed accommodation caravan parks, in seaside resort locations rather than purpose built residential parks. 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 which are similar to those in the Mobile Homes Act 1989 in that they provide for the Commercial and Consumer Tribunal to make orders in relation to the payment of compensation for relocation where the purposes of the land is changed to permit redevelopment.
46.The applicant submitted that once Council has given approval for the development, the home owner is protected by an appropriate award of compensation and the ambit of the discretion vested in the Tribunal is narrow. To the contrary, the respondent asserts that the exceptional circumstances must be shown and they are shown in this case.
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.
48.The respondents gave evidence to support the exceptional circumstances submission.
Anne Bemi and Errol Way
49.Anne Bemi was a trained teacher/librarian and retired in 2002 at age 48 years. She is now 54 years of age and with her husband owns a unit at Booval. According to her statement, she and her husband moved to the park in 1997 and eventually purchased a run down manufactured home for $30,000. At the time they bought into the park, they were told by Mr Woodbury that they did not need anything in writing and the law protected them. As the years passed they spent more and more time at the park and in 2002 she retired and they relocated to the park. They continue to own the unit at Booval and at presently they spend about 60% of their time at the park and the remaining 40% at either Booval or travelling, visiting friends and family.
50.Mr Way is 69 years of age and also retired from the teaching profession in 2002. He emphasised that they moved to the park as they wanted to retire to the Sunshine Coast. The beach and coastal lifestyle is very important to them
51.Initially they had the intention to repair the run down manufactured home and then sell this home plus the Booval unit and with the sale proceeds purchase a more up market manufactured home on the Sunshine Coast.
52.In May 2003 they received a notice from the owner that the park would be closed down. By that time they had spent a considerable period of time and money renovating the home. Consequently, many home owners departed and the value of their home has now declined. They now say they do not have enough money to fulfil their plans and have decided to stay at the park.
53.Ann Bemi is a fit looking 54 year old lady. Despite these appearances she sufferers from vestigal Ross River virus, sinus problems and has periodic back problems. She visits Dr Mckenzie at Buddina every three months and other medical practitioners.
54.Mr Way has various medical ailments including atrial fibrillation, glaucoma, arthritis, sinus problems and eye problems. He suffered a mild stroke in 2000. Last year he was hospitalised for knee surgery and requires ongoing medical treatment including a cardiac specialist in Brisbane, Dr McKenzie a general practitioner at the Sunshine Coast and Dr Morgan an orthopaedic specialist at Ipswich and others.
55.Anne Bemi and Errol Way retired to the beach at the Sunshine Coast and they do not want to relocate to the park at Nanango, a distance of over 150 Km away. At the park they are members of a close knit, supportive community and are close to facilities especially medical practitioners. They are of the strong belief that they will lose the services of their physiotherapist Shane Watson, their GP Dr McKenzie and other medical services that they need and have become accustomed to receive if they were forced to move. They would not be able to visit the Alexandra Headlands Surf Clubs, the other clubs and will lose the beach environment, the local shops and their friends and support groups.
56.They are adamant that they purchased the home at the park so they could retire in the beach community and relocation to Nanango is simply not acceptable. Further, it would cause them serious financial distress
Kerrie and Dieter Bernau
57.They purchased a home at the park in 2003 so as to give them a secure place to live in their retirement. At the time of the purchase, the park manager was asked if the park was to be developed in the near future. In response an answer ‘no’ was given. Four weeks later a letter was received from the park owners saying that the park would be redeveloped. Shortly after that Mr Woodbury denied he ever said these words. They purchased the manufactured home as this was the first opportunity they had to purchase their own home.
58.Kerry Bernau is aged 64 and has multiple acute medical conditions. She is blind, has lupus, heart disease and a stoma (a bowel bag). She regularly visits her medical practitioners and recently had vascular surgery to allow better blood circulation of the legs. At present she is undergoing training for a blind dog at Bald Hills and attends university at Sippy Downs. She can hardly walk but it was acknowledged that her health has improved slightly since her last medical procedure.
59.Dr Werchon gave evidence and described Mrs Bernau as a medical time bomb and a forced relocation to Nanango was life threatening and will “doom them”. He said she had severe and daunting medical conditions and most people would have succumbed some time ago. He said the thought that her intricate and vital networks of care may be blown apart by her forced expulsion shocks him.
60.Mr Bernau is 71 years of age. He suffers from osteoarthritis, malignant melanomas, prostrate cancer and relied on the support of local doctors. He is his wife’s official carer and works part time as a school crossing supervisor.
61.Both Mr and Mrs Bernau said the park has a caring community, the residents provide emotional support and physical care. They attend functions, parties and barbeques at other resident’s homes. They do not want to relocate to Nanango.
Kim Musgrove
62.Mr Musgrove is 54 years of age and retired from an administration position with Queensland Health. He initially resided at the park on a part time basis and finally purchased site number 115 in 1997. He paid $40,000 for the park and a further $25,000 for extensive renovations. He moved to the park so he could retire on the coast and have close proximity to the Maroochy Surf Life Saving Club where he is a vice president. He has local friends and has an involvement with local community groups. He does not drive and does not own a car.
63.He said that Mr Woodbury, the park manager informed him that the owner had no intention of altering the park’s status.
64.He does not want to be removed to Nanango and says such a move was equivalent to deportation. If he was relocated he would not be able to attend his local doctor, he will not be able to be involved with the surf-club and the Cotton Tree Markets. Mr Musgrove does not work because of his ongoing depression. He says a forced move to Nanango would wreck his life.
65.Other witnesses tendered statements in support of the respondents. These witnesses assert that it is a close knit community, and oppose the idea of the respondents being forced to relocate.
66.The circumstances surrounding each of the five respondents are different. The stated reasons why the respondents purchased their homes at the park also differ slightly. Ms Bemi, Mr Way and Kim Mosgrove were attracted to a coastal lifestyle with coastal activities and Mr and Mrs Bernau were prompted by financial considerations. Significantly, none of them want to be relocated to Nanango.
67.I accept the respondent’s evidence concerning their health conditions and medical needs. It is blatantly obvious that a re-location to Nanango would have an adverse effect on their amenities of life. I accept their evidence in this regard.
68.In contrast the impact on the applicant also has to be considered. The park owner has made its intentions clear since 2003 that it wished to develop the site. It has otherwise complied with s38 of the Act and the failure to make a termination order would have a severe financial impact for it. At the hearing, Ms Lawson was unable to specify with particularity the financial impact if the development did not proceed. This uncertainty stemmed from the inability to predict the price and demand for the townhouses after construction was completed. It can safely be stated that the financial impact on the applicant is significant.
69.The issue to be considered is whether these circumstances expressed above constitute exceptional circumstances. As for Kim Musgrove his health problems are not life threatening and his need for a coastal lifestyle with involvement with the life saving club and the markets, does not in my view constitute exceptional circumstances. They are factors to consider but I do not consider them to be exceptional circumstances.
70.Mr Way and Ms Bemi’s circumstances are similar to those of Mr Musgrove. They intentionally moved to the sunshine coast to be near the coast facilities and have medical problems. Mr Way and Ms Bemi have owned real estate in the past and know the differences between owning a house built on their own land and owning a manufactured home situated on a park owners land. In the latter case the home owner’s position was and is never as secure as the former. A manufactured home owner is always at risk of the park being redeveloped. Even though the coastal lifestyle was an important element in their own life style decisions, I am not satisfied that these factors constitute exceptional circumstances.
71.During the course of the hearing I asked many of the witnesses whether they would move if a large enough sum of money was given to them. The answer was invariably “yes” they would. These answers support the conclusion that the issue can be determined by paying an appropriate level of compensation. I am satisfied that Ms Bemi, Mr Way and Mr Musgrove can be properly compensated for the need to be relocated.
72.The position with respect to Mr and Mrs Bernau is different. Mrs Bernau’s medical conditions are so acute that a forced relocation has life threatening implications. I am of the view that she cannot be compensated for this loss. Consequently, I am satisfied that this is an exceptional circumstance or such a circumstance that would force the discretion to be exercised against issuing a termination order in her and Mr Bernau’s case.
73.The next issue to determine the day the termination order is to be effective and unfortunately neither party presented any submissions on this issue. I am of the view that it will take time for the home owners to consider their position and to find another park if that be their intention, wherever that may be. In these circumstances, 6 weeks will be given.
Order
74.The site agreement in existence between Anne Maree Bemi and Errol Brian Way and the applicant is terminated and such termination to be effective on the 18 June 2010 and Anne Marie Bemi and Errol Brian Way are required to give vacant possession of the site on or before termination day.
75.The site agreement in existence between Kim Musgrove and the applicant is terminated and such termination to be effective on the 18 June 2010 and Kim Musgrove is required to give vacant possession of the site on or before termination day.
76.The matter is adjourned for directions on the issue of compensation.
77.The application for a termination order against Mr and Mrs Bernau is dismissed
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