Walter Elliott Holdings Pty Ltd v Robinson
[2013] QCAT 13
| CITATION: | Walter Elliott Holdings Pty Ltd v Robinson and Anor [2013] QCAT 13 |
| PARTIES: | Walter Elliott Holdings Pty Ltd |
| v | |
| Wilf Robinson Denise Robinson |
| APPLICATION NUMBER: | OCL026-12 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | 25 October 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Paul Favell, Member |
| DELIVERED ON: | 11 January 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The application is dismissed. |
| CATCHWORDS: | Manufactured Homes – claim for rental increase – terms of agreement – validity of and application Manufactured Homes Act (Residential Parks Act) 2003, ss 69, 71 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Walter Elliott Holdings Pty Ltd represented by Mr Garrie Love |
| RESPONDENT: | Mr Wilf Robinson and Mrs Denise Robinson represented by Mr Wilf Robinson |
REASONS FOR DECISION
Will Robinson and Denise Robinson live at Palm Lake Resort Mt Warren Park in a manufactured home. The site they occupy is one of 80 sites within the resort.
The Robinsons occupy the site described at Site 54/Lot 1 Mt Warren Boulevard, Mount Warren Park on terms and conditions set out in an agreement made between them and the owners of the Park, Walter Elliott Holdings Pty Ltd on 12 July 2004. The agreement term was described in the express terms of the agreement as “the prescribed term as set out in the Manufactured Homes (Residential Parks) Act 2003 as amended and commencing on the date hereof.”
The agreement provided that during the term of the agreement the Robinsons would pay Walter Elliott Holdings a site rent of $208 per fortnight; on Thursday or each other week commencing on 12 July 2004, provided that the site rent would be reviewed on the 1st day of January each year and increase in the consumer price index [All groups consumer – Brisbane] with the index as 30th September prior to that review compared with the index of 30th September prior. There was a provision for a further 5 year review to reflect the market review “inflating, not in addition to the CPI increases due and payable in the intermediate years.” Those 5 year reviews were to occur on years that end in a 5 or a 10.
Walter Elliott Holdings seeks a rental increase under section 71 of the Manufactured Homes (Residential Parks) Act 2003. That increase would add $19.06 per fortnight to the present rent of $259.94 per fortnight making a rental of $279 per fortnight.
Section 71 allows a park owner to apply to the Tribunal for an order about a proposed increase in circumstances when the increase is necessary to cover significant increased operation costs in relation to the park including significant increases in rates, taxes or utility costs for the park, after the park owner has given a notice to the homeowner stating the amount of the proposed increased site rent; the basis for the proposed increase; the increase date and stating a requirement of the homeowner to give the park owner a written response in directing the attitude of the homeowner to the proposed increase, and after the park owner and the homeowner do not agree on the increase.
The proposed increase can not be based on a market review of site rent and the increase date must not be earlier than 2 months after the notice is given.
The application can be made if section 69 does not apply to the proposed increase. Section 69 applies if a site agreement provides for an increase in the site rent payable under the agreement and states how the amount of the increase is to be calculated.
Walter Elliott Holdings seeks the increase in costs of council rates and water charges in addition to a 3.1% CPI increase. The costs of rates and water charges for the year to 30 September 2010 was $72,419.52 and in the year to 30 September 2011 was $96,104.43, an increase of $23,684.91 or 32.71%. To support those figures the applicant provided rates notices for Logan City Council with issue dates 21 July 2011, 20 April 2011, 19 January 2011, 19 November 2011, 21 July 2010, 21 April 2010, 20 January 2010 and 14 October 2009.
It also provided water charge notices issued on 23 August 2011, 24 May 2011, 22 February 2011, 25 November 2010 and 31 August 2010.
[10]Mr Robinson told me during the hearing that he did not dispute the quantum of the increases in rates and water charges as claimed. Accordingly I have accepted the figures set out above as the increases over the relevant period.
[11]This matter was directed by order made on 14 August 2012 to be heard as a hybrid hearing such that after the hearing concluded I was to make a written decision with brief reasons for the decision and any necessary findings of fact and place it in a sealed envelope pending the outcome of mediation to be held immediately after the hearing in accord with sections 76 to 80 of the Queensland Civil and Administrative Tribunal Act 2009.
[12]During the hearing it became apparent, because of the various submissions made by Mr Robinson, that it was highly unlikely that any mediation would have a prospect of success. At the end of the hearing both parties told me that mediation would be pointless and I then ordered that the application be determined by hearing only.
[13]On 12 July 2004, Walter Elliott Holdings Pty Ltd and Wilf and Denise Robinson entered into a site agreement. Section 4 of Part 1 had the site rent as $104 per week which included “council rates, water up to 8KL per month, use of all facilities, mowing of front laws, use of site.”
[14]Section 6 of Part 1 lists as part of the Table of Costs for utilities and services “Water – up to 8KL inc. – monthly”.
[15]Section 10 of Part 1 concerning site rent increases provides for the method of calculation as “CPI plus 5 year market review” and the frequency of increases as “Annually” with a 5 year market review. The procedures for dealing with rent disputes are set out in Part 2, Section 3 of the agreement.
[16]Part 2 Section 3.4 provides for the varying of site rent. Section 3.4.1 provides “Site rent may only be valued in the ways set out in Sections 68 to 71 of the Act.” Section 3.4.2 provides for the methodology when the rent increase is in accordance with Part 1 Section 10. Section 3.4.3 provides for the methodology when the park owner wants to increase the rent outside of Part 1, Section 10.
[17]This application is an application under section 71 of the Act and accordingly purports to be an application under section 3.4.3 Part 2 of the Agreement.
[18]Part 4 of the Agreement sets out the terms of the Agreement in addition to the implied terms. Clause 2 under the subheading “Occupancy” provides that “during the term of this agreement, the occupier will pay the owner the site rent which shall be $208 per fortnight payable in advance on Thursday of each other week.” That clause provided for the site rent to be received on the 1st day of January each year and increase in the Consumer Price Index. It also provided for 5 year reviews of the site rental “to reflect the market review replacing, not in addition to, the CPI increase due and payable in the intermediate years.” It provides for a methodology to establish a new fee that reflects an amount that can be determined as fair and reasonable.” Among the matters to which regard could be had, was “the amount of outgoings in respect of the residential premises required to be borne by the park owner under the agreement including but not limited to any increases in Council rates and other statutory charges”.
[19]The site agreement is expressed to be governed by and subject to section 25 of the Manufactured Homes (Residential Parks) Act 2003. Section 25(4)(i)(iii) requires the agreement to state how and when the site rent may be varied including that, under the Act, the Tribunal may make an order increasing the site rent on application by the park owner; or make an order reducing the site rent on application by the homeowner. In my view these parts of the Agreement referred to herein comply with the requirements of section 25.
[20]The material submitted by the respondent entitled “Sworn evidence given under the Royal Seal of our Constitutional Contract with Queen Elizabeth II providing Account detail Relating to: PERPETUATION in GENOCIDE of Australian Senior Citizens, an enforced submission to QCAT.”
[21]In that material the respondent asserts that the submission is “written to comply with the following hierarchical statutes:
2.1 Under the United Nations Universal Declaration of Human Rights Article 1.
2.2 Under Nuremburg Principle IV.
2.3Under Section 109 Inconsistency of law (Commonwealth of Australian Constitution Act).
2.4 Under the State of Queensland Legislative Standards Act 1992 section 4.
2.5 Under the Manufactured Homes Residential Parks Act 2003/2010 section 5.
[22]By a certain reasoning set out in the submission, the respondent contends “the act is radically wrong and illegal, the Application must be dismissed.”
[23]In my view the reasoning is flawed. I find there is not any proper basis for making the finding sought.
[24]The Tribunal finds that there existed a site agreement between the parties which provided for an increase in the site rent payable under the Agreement and it states how the amount of the increase is to be calculated and section 69 does apply to the proposed increase. Accordingly, section 71 of the Manufactured Homes (Residential Parks) Act 2003 does not apply.
[25]This application was made under section 71. Because of the findings above it is dismissed.
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