Wadley Properties No 1 Pty Ltd v Davis
[2012] QCAT 73
•22 February 2012
| CITATION: | Wadley Properties No 1 Pty Ltd v Davis [2012] QCAT 73 | |
| PARTIES: | Wadley Properties No 1 Pty Ltd t/a Big 4 Brisbane Northside Holiday Village | |
| v | ||
| Ms Eunita Dian Davis | ||
| APPLICATION NUMBER: | OCL102-10 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | 2 February 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Mr Jim Allen, Member |
| DELIVERED ON: | 22 February 2012 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | The Tribunal makes the following orders: 1. The site agreement between Wadley Properties No 1 Pty Ltd t/a Big 4 Brisbane Northside Holiday Village and Ms Davis is terminated with effect from 4.00pm on 7 July 2012. 2. Ms Davis will give Wadley Properties No 1 Pty Ltd t/a Big 4 Brisbane Northside Holiday Village vacant possession of site 190 on or before 4.00pm on 7 July 2012. 3. Ms Davis will: (a) Notify Wadley Properties No 1 Pty Ltd t/a Big 4 Brisbane Northside Holiday Village of a site (“the new site”) within a 300 kilometre radius of site 190 to which Ms Davis wishes to relocate her manufactured home; (b) Provide Wadley Properties No 1 Pty Ltd t/a Big 4 Brisbane Northside Holiday Village with evidence, in the form of a site agreement, that Ms Davis has been accepted into the park at which the new site is located, by 4.00pm on 31 March 2012. 4. Wadley Properties No 1 Pty Ltd t/a Big 4 Brisbane Northside Holiday Village will upon compliance by Ms Davis with order 3 at its own cost and expense: (a) Arrange for the relevant authorities to properly disconnect all services to the manufactured home at site 190 (including but not limited to telephone, electrical, plumbing and drainage services) and leave such services in a sealed and safe condition but in a state of readiness for reconnection; (b) Remove Ms Davis’ manufactured home from site 190; (c) Transport the manufactured home and Ms Davis’ personal effects to the new site; (d) Restore site 190 to a neat and tidy condition following the removal of the manufactured home; (e) Position the manufactured home at the new site; (f) Repair any damage that may be done to Ms Davis’ manufactured home, whether during removal from site 190, transporting it to the new site, or during positioning of the manufactured home on the new site; (g) Pay all and any council, licence permit or other fees payable for transporting Ms Davis’ manufactured home from site 190 to the new site; (h) Pay all and any fees to council in relation to any application made for building approval to position Ms Davis’ manufactured home on the new site; (i) Pay the costs associated with making Ms Davis’ manufactured home compliant with the building approval except where such costs are incurred due to the state of repair and maintenance of Ms Davis’ manufactured home; (j) Pay all any insurance costs of moving Ms Davis’ manufactured home from site 190 to the new site; (k) Connect telephone, electricity and gas to Ms Davis’ manufactured home at the new site; and (l) Connect plumbing and drainage to Ms Davis’ manufactured home at the new site All of the above to be undertaken by Wadley Properties No 1 Pty Ltd t/a Big 4 Brisbane Northside Holiday Village on or before 4.00pm on 30 June 2012. 5. Wadley Properties No 1 Pty Ltd t/a Big 4 Brisbane Northside Holiday Village is ordered to pay Ms Davis nil compensation for termination of her site agreement. |
| CATCHWORDS: | Manufactured Homes – Termination of site agreement for change of use – What compensation payable if park owner to bear costs of relocation of manufactured home Manufactured Homes (Residential Parks) Act 2003, ss 38, 39, 40 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Ms Davis appeared for herself |
| RESPONDENT: | Mr Warren Wadley, a director, appeared for Wadley Properties No 1 Pty Ltd t/a Big 4 Brisbane Northside Holiday Village |
REASONS FOR DECISION
Introduction
Wadley Properties is the owner of the Big 4 Brisbane Northside Holiday Village and Ms Davis resides in a manufactured home[1] on site 190 at the Village under a site agreement[2] entered on 15 August 2003. Wadley Properties made application to the Tribunal on 3 August 2010 to terminate the site agreement[3].
[1] Section 10 of the Manufactured Homes (Residential Parks) Act 2003.
[2] Exhibit 1 Statement of Warren Morris Wadley 4 November 2010 Annexure D.
[3] Section 38 of the Manufactured Homes (Residential Parks) Act 2003.
Wadley Properties material
Wadley Properties gave three grounds for requesting the termination order. The first ground was Ms Davis’ failure to remedy contraventions of the site agreement[4]. The second ground was Ms Davis’ failure to occupy the manufactured home as her principal place of residence[5]. The third ground was Wadley Properties wish to use the land comprising the site for another purpose[6].
[4] Section 38(1)(a) of the Manufactured Homes (Residential Parks) Act 2003.
[5] Section 38(1)(d) of the Manufactured Homes (Residential Parks) Act 2003.
[6] Section 38(1)(f) of the Manufactured Homes (Residential Parks) Act 2003.
Ground 1
Ms Davis has been served with numerous notices to remedy breach between 30 January 2004 and 7 July 2010. At the time of filing of the application Ms Davis had not remedied some of those breaches.
Mr Wadley filed a further statement[7] which annexed copies of two further breach notices one of the 15 February 2011 relating to a breach of section 16 of the Act and the other of 28 September 2011 relating to arrears of site rent and electricity charges.
[7] Exhibit 2 Statement of Warren Morris Wadley 3 January 2012.
Mr Wadley submitted current rental ledger[8] and electricity ledger[9] statements at the hearing which show that Ms Davis is currently up to date with all of her payments owing to Wadley Properties.
[8] Exhibit 6.
[9] Exhibit 7.
Wadley Properties has submitted that the fact that Ms Davis is currently not in arrears are not a sufficient basis to dispose of the application under ground one. This is because the breaches were not remedied within the 28 day period and there is a long course of conduct in respect of Ms Davis breaching her site agreement and that if a termination order is not made Ms Davis will revert to her previous behaviour.
Ground 2
Since in or about May 2006 Ms Davis has not used the site or her home as her principal place of residence and as far as the applicant is aware she has been residing at 8 Mary Street, Amamoor which she is occupying as her principal place of residence.
As referred to in section 38(1)(d) of the Act Ms Davis is therefore not occupying the home located on the site as her principal place of residence.
Ground 3
The park is a mixed use park, which consists of sites that are utilised for manufactured homes, caravans and tourists. As at the date of the application there were 215 sites at the Park made up as follows:
19 manufactured home sites;
81 short-term tourist sites-caravan and motorhome sites;
20 short-term tourist accommodation sites-cabins, villas, one, two and three bedroom holiday homes;
15 tent sites; and
80 short-term rental accommodation sites-cabins, one, two and three bedroom homes.
The park is therefore not, in its entirety a “residential park” to which the Act applies.
[10] The park land is approved as a ‘caravan park’, a copy of the original town planning approval dated 30 September 1985 was annexed to the application. A more recent residential park permit issued by the Brisbane City Council for 215 caravan park sites was annexed to Mr Wadley’s statement.[10]
[10] Exhibit 1 annexure I.
[11] On 4 December 2008 Wadley Properties sent a notice to all manufactured home owners in the park a notice which advised that Wadley Properties was transitioning out of the provision of manufactured home sites and to use those sites for another purpose, namely sites for holiday cabins, rental accommodation, caravans, motor homes, camping and related facilities. Further that the decision would be implemented on a progressive basis with the right reserved to nominate a sunset date by which the transition was to be implemented.
[12] Pursuant to the terms of the notice, Wadley Properties has now made a decision to change the current use of the Ms Davis’ site and instead use it for tourist accommodation. The proposed new use of the site that is, for tourist accommodation, is within the terms of Wadley Properties approval already obtained for the park.
[13] The relevant “part of the park in which the site is located” for the purposes of section 38(1)(f) of the Act is the area comprising all of the remaining manufactured home sites in the park[11]. All of these sites are currently the subject of separate applications before the Tribunal. Because of the Notice given in regard to the future use of the park there are no available manufactured home sites in the park.
[11] See Haraba Pty Ltd as trustee v Castles [2007] QCA 207 at para 26.
[14] In terms of any compensation order to be made under section 40 of the Act, Wadley Properties has obtained a quote from “Caravan & Annexe Relocations” for the applicable “relocation costs[12] being the costs of relocating the home on the basis of the maximum distance over which the home is to be transported is 300 kilometres[13]. There was no further evidence submitted in regard to a compensation order by either party.
[12]Northshore Bayview Street Pty Ltd v Anderson [2007] CCT MH029-05 at para 46 and Northshore Bayview Street Pty Ltd v Hay & Johnston [2007] CCT MH028-05at para 47.
[13] Section 40(6) of the Manufactured Homes (Residential Parks) Act 2003.
[15] At the hearing Mr Wadley stated that Ms Davis wanted to maximise the value of her home but it was the commerciality of what money she can get for it. At the time Wadley Properties had purchased the park there had been 72 owner occupied sites which had been moved to a central area and this number had been steadily reduced.
[16] Wadley Properties had assisted many of the former site occupiers to identify alternative sites and had moved many of the manufactured homes to the new sites. The range of parks where a manufactured home can be shifted to are diminishing.
[17] Mr Wadley accepted that the primary ground for termination of the site agreement was that the park owner wished to use the part of the park on which the site is located for another purpose and that it was appropriate to make an order which terminated the site agreement with Ms Davis on that ground.
[18] Mr Wadley stated that he would be happy to arrange for the relocation of Ms Davis’ manufactured home to a new site and would be prepared to give her a reasonable amount of time to find an alternative location and would then need a period of around three months to move the home to the new site.
Ms Davis’ Material
[19] Ms Davis did not formally respond to the application made by Wadley Properties. She submitted two letters[14] to the Tribunal indicating that she intended to keep her site agreement charges up to date and that she would re-locate her home in due course. Ms Davis also provided at the hearing a current rental statement showing that she was up to date with her site rent[15].
[14] Exhibit 3 letter dated 22 October 2010 and exhibit 4 letter dated 1 November 2010.
[15] Exhibit 8.
[20] Ms Davis stated at the hearing that as far as she knew the site agreement had been terminated and that she had been attempting to find a new location for her manufactured home. She was concerned to ensure she had sufficient time to move the home and submitted a letter from the residents association in that regard[16].
[16] Exhibit 9 letter CAMRA to Ms Davis dated 9 January 2012.
[21] Ms Davis acknowledged at the hearing that if an order was made which required Wadley Properties at its cost to attend to the relocation of her manufactured home to a new site of her choosing this would be in lieu of the requirements in regard to a compensation order.
Discussion
[22] The Tribunal is satisfied that Wadley Properties is a park owner and that a site agreement exists between Wadley Properties and Ms Davis in respect of site 190 and therefore the Tribunal has jurisdiction to determine this application.[17]
[17] Section 38 of the Manufactured Homes (Residential Parks) Act 2003.
[23] While Wadley Properties has brought this application on three grounds the Tribunal is of the view that Ms Davis’s conduct in regard to breaches of the Act and the site agreement was not of such a degree which should result in her having her site agreement terminated based on those breaches. She has always paid the arrears eventually and at the time of the hearing was up to date in all of her payments.
[24] In regard to her not occupying the site as her principal place of residence there was insufficient evidence to make out this ground.
[25] The primary ground for terminating the site agreement is the change of use of the park and this was acknowledged by Mr Wadley. Since the purchase of the park Wadley Properties have undertaken a process of converting the owner occupied sites in the park to other uses in accordance with their notice to residents of 4 December 2008. The alternative use of the site is in accordance with an approval given by the Brisbane City Council on 27 June 2010.
[26] The Tribunal is satisfied that this ground for the termination of the site agreement is made out and that the site agreement between Wadley Properties and Ms Davis in respect of site 190 should be terminated.
[27] Wadley Properties submitted that if the site agreement was terminated on the ground of change of use that it would attend to the relocation of Ms Davis’ manufactured home to a site of her choosing at the cost of Wadley Properties. Ms Davis indicated her agreement to this course of action and the Tribunal will order accordingly.
[28] The Tribunal is required to make a compensation order where a termination order is made on this ground[18]. The matters that the Tribunal may have regard to when making a compensation order are set out in section 40(3) of the Act where the home owner intends to relocate the manufactured home as is the case here. In this case all of the costs are to be borne by Wadley Properties and therefore the amount of compensation which Wadley Properties is ordered to pay Ms Davis will be nil.
[18] Section 40(1) of Manufactured Homes (Residential Parks) Act 2003.
[29] In that case it is important that all of the costs associated with the relocation of Ms Davis’ manufactured home be captured in the order and the Tribunal has had regard to previous decisions of the former Commercial and Consumer Tribunal to ascertain the costs which need to be considered as well as the submissions made by Wadley properties in that regard. The Tribunal notes that Wadley Properties did not consider that it should be responsible for the cost of the fees in relation building approval or the cost associated with making the manufactured home compliant with any such approval. In previous decisions these costs have been included in those to be borne by the park owner[19]. The Tribunal notes that there has previously been a cap of $2,000 put on these costs in decisions made in 2007. There was no material put before the Tribunal as to what these costs would likely be and as mentioned the Tribunal is concerned to ensure that all costs be captured. Wadley Properties should not be expected to bear any costs which result from the state of repair and maintenance of the manufactured home and the order will be limited in that way.
[19]Northshore Bayview Street Pty Ltd v Anderson, j [2007] QCCTMH 7 and Northshore Bayview Street Pty Ltd v Hay, A & Johnston, C. [2007] QCCTMH 6.
[30] The Tribunal in making a termination order is required to state the day the termination is effective, and require the home owner to give vacant possession of the site on or before the termination day. Having regard to the time needed to find a new site and then to move the manufactured home to that site the termination day will be one week after the end of the period within which the manufactured home is required to be relocated.
[31] Wadley Properties is concerned that having regard to Ms Davis’ history she may not comply with a termination order and that it is appropriate to include in any order an order deeming that the manufactured home be abandoned[20]. This would have the effect of deeming Ms Davis’ manufactured home to be abandoned as at the termination date with Wadley Properties then having a right to sell the manufactured home and Ms Davis’ personal effects with a requirement to account to her for the proceeds of sale.
[20] Sections 52-55 of the Manufactured Homes (Residential Parks) Act 2003.
[32] Ms Davis made it clear at the hearing that she intends to actively seek out a new location for her manufactured home and understands that once the termination order is made the manufactured home must be removed from its current site. The Tribunal will rely on Ms Davis’ cooperation to ensure that the order is carried out and if for any reasons it is not then it will be for Wadley Properties to bring a further application to the Tribunal.
Order
[33] The Tribunal makes the following orders:
The site agreement between Wadley Properties and Ms Davis is terminated with effect from 4.00pm on 7 July 2012.
Ms Davis will give Wadley Properties vacant possession of site 190 on or before 4.00pm on 7 July 2012.
Ms Davis will:
(a) Notify Wadley Properties of a site (“the new site”) within a 300 kilometre radius of site 190 to which Ms Davis wishes to relocate her manufactured home;
(b) Provide Wadley Properties with evidence, in the form of a site agreement, that Ms Davis has been accepted into the park at which the new site is located, by 4.00pm on 31 March 2012.
Wadley Properties will upon compliance by Ms Davis with order 3 at its own cost and expense:
(a) Arrange for the relevant authorities to properly disconnect all services to the manufactured home at site 190 (including but not limited to telephone, electrical, plumbing and drainage services) and leave such services in a sealed and safe condition but in a state of readiness for reconnection;
(b) Remove Ms Davis’ manufactured home from site 190;
(c) Transport the manufactured home and Ms Davis’ personal effects to the new site;
(d) Restore site 190 to a neat and tidy condition following the removal of the manufactured home;
(e) Position the manufactured home at the new site;
(f) Repair any damage that may be done to Ms Davis’ manufactured home, whether during removal from site 190, transporting it to the new site, or during positioning of the manufactured home on the new site;
(g) Pay all and any council, licence permit or other fees payable for transporting Ms Davis’ manufactured home from site 190 to the new site;
(h) Pay all and any fees to council in relation to any application made for building approval to position Ms Davis’ manufactured home on the new site;
(i) Pay the costs associated with making Ms Davis’ manufactured home compliant with the building approval except where such costs are incurred due to the state of repair and maintenance of Ms Davis’ manufactured home;
(j) Pay all any insurance costs of moving Ms Davis’ manufactured home from site 190 to the new site;
(k) Connect telephone, electricity and gas to Ms Davis’ manufactured home at the new site; and
(l) Connect plumbing and drainage to Ms Davis’ manufactured home at the new site
All of the above to be undertaken by Wadley Properties on or before 4.00 pm on 30 June 2012.
Wadley Properties is ordered to pay Ms Davis nil compensation for termination of her site agreement.
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