Wadley Properties No 1 Pty Ltd v Davis (No 2)
[2012] QCAT 545
•30 October 2012
| CITATION: | Wadley Properties No 1 Pty Ltd v Davis (No 2) [2012] QCAT 545 |
| PARTIES: | Wadley Properties No 1 Pty Ltd t/a Big4 Brisbane Northside Holiday Village |
| v | |
| Eunita Dian Davis |
| APPLICATION NUMBER: | OCL102-10 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Jim Allen, Member |
| DELIVERED ON: | 30 October 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 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 4.00 pm 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 4.00 pm 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 4.00 pm 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 4.00 pm 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: | Application for renewal of final decision – termination of manufactured home site agreement – abandonment of manufactured home Queensland Civil and Administrative Tribunal 2009, ss 133, 134 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Wadley Properties is the owner of a manufactured home residential park of which Ms Davis was the resident of site 190. The Tribunal made an order on 2 February 2012 which had the effect of terminating the site agreement and requiring Ms Davis to give vacant possession of site 190 on or before 4.00 pm on 7 July 2012.
There was also a mechanism included in the order which would have enabled Ms Davis to have her manufactured home moved to another residential park at the cost of Wadley Properties. This required Ms Davis to nominate the new site on or before 4.00 pm on 31 March 2012.
Ms Davis has not provided details of a new residential park site in compliance with the relevant order nor has she moved the manufactured home off the site as required by the order for vacant possession. As the manufactured home remains on the site Wadley Properties has applied for renewal[1] of the order made by the Tribunal on 2 February 2012.
[1] Section 133 of the Queensland Civil and Administrative Tribunal Act 2009.
Wadley Properties is seeking to have the Tribunal make a renewed order which would declare Ms Davis’s manufactured home to be abandoned[2] and consequential orders allowing Wadley Properties to sell the manufactured home and Ms Davis personal effects.
[2] Section 52 of the Manufactured Homes (Residential Parks) Act 2003.
An application for renewal may be made if:
1. It is not possible for the Tribunal’s final decision in a proceeding to be complied with; or
2. There are problems with interpreting, implementing or enforcing the Tribunal’s decision in a proceeding[3].
[3] Section 133(1) of the Queensland Civil and Administrative Tribunal Act 2009.
Wadley Properties' submission is that it was prevented from complying with order 4 of the decision (removal and repositioning of the manufactured home) because of Ms Davis’s non-compliance with order 2 (vacant possession of site 190) and order 3 (notification of new residential park site) and that this establishes the requirements above. Ms Davis was directed to file any submissions in reply to the renewal application by the Tribunal but she has not done so.
The Tribunal has previously decided that a refusal of a party to comply with an order does not constitute grounds for renewal[4]. That case involved a builder refusing to carry out an order to rectify defects. It was said that there is an entitlement to enforce under section 132 of the QCAT Act but the Tribunal has no enforcement powers.
[4] Bruce v Sneesby [2011] QCAT 392.
In this case it is clear that Wadley Properties is having difficulty with the implementation and enforcement of the Tribunal’s decision of 2 February 2012 due to Ms Davis’s lack of co-operation. If the Tribunal were minded to grant the order requested this would enable Wadley Properties to implement the order by giving a mechanism which would provide Wadley Properties with vacant possession of site 190. The Tribunal is satisfied that there is a ground made out for entertaining an application to renew the decision of 2 February 2012.
If a renewal ground exist the Tribunal may make:
1. the same final decision it made when the proceeding was originally decided; or
2. Any other appropriate final decision that it could have made, under the act or an enabling Act, when the proceeding as originally decided[5].
[5] Section 134 of the Queensland Civil and Administrative Tribunal Act 2009.
Wadley Properties is not seeking that the decision be changed in terms of the order terminating the site agreement and the requirement for Ms Davis to give Wadley Properties vacant possession of the site. What it is seeking is the new mechanism to provide vacant possession, that is it be given the right to sell Ms Davis’s manufactured home and contents upon a declaration that the manufactured home has been abandoned by her.
The original application had requested that such an order be incorporated into the decision in case circumstances such as these arose. Wadley Properties submitted that if Ms Davis did not inform it of new site details then an order should be made that the home is deemed to be abandoned.
There were also some submissions made to the Tribunal that Ms Davis had not been using the manufactured home as her principal place of residence. The Tribunal in its reasons for decision determined that there was insufficient evidence in regard to that ground.
For the Tribunal to make an order declaring that Ms Davis has abandoned the manufactured home on the site[6], Wadley Properties must first reasonably believe that Ms Davis has abandoned the manufactured home on the site[7]. There are also a number of things the Tribunal may have regard to in deciding whether to make the abandonment order[8]. It is noted that one of these is whether site rent is unpaid. Wadley Properties in its submissions for the original hearing confirmed that Ms Davis’s site rent was up to date. Another is whether the agreement has already been terminated. The agreement was terminated as at 7 July 2012 in accordance with the decision of 2 February 2012.
[6] Section 52(3) of the Manufactured Homes (Residential Parks) Act 2003.
[7] Section 52(1) of the Manufactured Homes (Residential Parks) Act 2003.
[8] Section 52(5) of the Manufactured Homes (Residential Parks) Act 2003.
Wadley Properties has not expressed that it reasonably believes that Ms Davis has abandoned the manufactured home but that it wishes to have the order made on the basis of a deemed abandonment as a result of the termination order and the failure of Ms Davis to comply with its terms.
In discussing the question of making an order under section 52 in the original reasons it was said “that the Tribunal will rely on Ms Davis cooperation to ensure that the order is carried out and if for any reason it is not then it will be for Wadley Properties to bring a further application to the Tribunal”.
While the Tribunal is prepared to make an appropriate order to assist Wadley Properties to ensure that the Tribunal’s decision can be implemented and enforced it is required to have regard to the requirement that it must be one that it could have made when the proceeding was originally decided.
It is the Tribunal’s view that an abandonment order requires a positive finding that Ms Davis has abandoned her manufactured home on the site and it is not one that can be made on a deemed basis where a termination order has been made, to facilitate Wadley Properties regaining vacant possession of the site. Therefore the Tribunal is unable to make the changed order requested by Wadley Properties and the Tribunal will make the same final decision it made when the proceeding was originally decided.
If Ms Davis does abandon the manufactured home then an application can be made under section 52 of the Manufactured Homes (Residential Parks) Act 2003. If it is necessary to otherwise enforce the Tribunal’s order then an application could be made to the Supreme Court of Queensland under section 132 of the Queensland Civil and Administrative Tribunal Act 2009.
2