Wilson v Leknarf Pty Ltd trading as Australiana Top Tourist Park
[2013] QCAT 676
•19 December 2013
| CITATION: | Wilson & Ors v Leknarf Pty Ltd trading as Australiana Top Tourist Park [2013] QCAT 676 |
| PARTIES: | Gregory Michael Wilson Rita Wilson Paul Ransley Marina Ransley Paul Goodwin Joyce Fitzgerald Paula Mason Mike Stillman Olive Stillman Les Artley Christa Hudson Fay Gallacher Gwen Roberts Bob Ford Ray Plumb Vilma Plumb Neville Liversidge Jennifer Liversidge Wayne Abraham Jenny Abraham Hetty Lee Margaret Young Kevin Frey Sandra Frey Ted Carlton Pauline Carlton Jim Spirritt Chris Spirritt (Applicants) |
| v | |
| Leknarf Pty Ltd trading as Australiana Top Tourist Park (Respondent) |
| APPLICATION NUMBER: | OCL029-13 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | On the papers |
| DECISION OF: | Member Milburn |
| DELIVERED ON: | 19 December 2013 |
| DELIVERED AT: | Hervey Bay |
| ORDERS MADE: | 1. The tribunal does not have jurisdiction to determine these proceedings and the proceedings are dismissed. |
| CATCHWORDS: | Manufactured Homes (Residential Parks) dispute, electricity supply, s14A, s99A of the Manufactured Homes (Residential Parks) 2003, on-supply of electricity under the Electricity Act 1994 and charges, cost of utility supply, Emmetlow Pty Ltd v Pomroy and Ors [2013] QCATA 186 applied. Manufactured Homes (Residential Parks) 2003 ss14A, 99A Electricity Act 1994 Palmpoint Pty Ltd v The Residents of Bribie Pines Island Village & Ors [2007] QDC 130 (10 May 2007) Tamberra Pty Ltd as trustee for the Max Ahlfeld Family Trust Sugar Coast Relocatable Homes v Murray and Ors [2012] QCAT 553 Bates v Seachange (Land) Pty Ltd as trustee [2012] QCAT 289 Smith and Anor v Lazy Acres Caravan Park [2012] QCAT 554 Emmetlow Pty Ltd v Pomroy and Ors [2013] QCATA 186 applied. |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Australiana Top Tourist Park is a mid-size manufactured home park of mixed use, situated in central Hervey Bay. There are approximately 30 manufactured homes currently at the Park and to that extent only the Park is a "residential park", to which the Manufactured Homes (Residential Parks) Act 2003 applies[1].
[1]The tribunal accepts that the applicants are home owners for the purposes of the Act and the respondent is a park owner for the purposes of the Act.
The residents collectively applied to the tribunal for a determination in relation to the cost of on-supply of electricity charges by the park owner. The residents[2] challenge the basis upon which park owner may include a component to cover the legitimate cost of providing utility infrastructure within the Park following the enactment of section 99A of the Manufactured Homes (Residential Parks) Amendment Act 2010 on 1 March 2011 and its associated list of changes to the Manufactured Homes (Residential Parks) Act 2003.
[2] In this context, a reference to the residents means a reference to the applicants.
The intent of section 99A of the Act is to ensure that park owners do not charge more for the supply of electricity to residents than the actual cost charged to the park owner by the electricity retailer. Put simply, park owners are prohibited from profiting from such a situation. However, this section should not be interpreted to preclude the park owner from fairly and proportionately reclaiming the actual cost of supply from home owners. The cost of utility supply to the park owner is the cost incurred by it from the electricity supplier, irrespective of how the electricity supplier chooses to itemise its invoice.
The applicants originally sought four orders which might be summarised as follows:
i) That the tribunal makes an order to compel the park owner to give to the home owners a copy of their utility bills.
ii) That the tribunal orders payment to be made by the park owner to the homeowners by way of a refund to the home owners of money overcharged on electricity invoices, and a refund of a service fee charged from the period 1 March 2011[3].
iii) That the tribunal orders payment to be made by the park owner to the homeowners to give effect to a claimed reimbursement of adjustments applied by the park owner for undercharged electricity from 1 July 2011.
iv) That the tribunal makes an order to compel the park owner to appoint an independent auditor at the park owner’s expense to process any adjustments.
[3]In their final submissions, the applicant home owners confirmed that they no longer dispute the manner in which the park owner calculates and applies charges for home owners’ usage of electricity that is supplied to them.
Faced with a factual circumstance similar to the factual circumstances in this case, the tribunal decision in Pomroy and Ors v Emmetlow Pty Ltd [2012] QCAT 492 made various findings as to what section 99A meant and how it was to operate[4]. However, that decision was set aside on appeal by the appeal tribunal in Emmetlow Pty Ltd v Pomroy and Ors [2013] QCATA 186[5]. The appeal tribunal determined that there was no "site agreement dispute" between the parties that empowers the tribunal to hear the dispute. The appeal tribunal found that:
“The expression “dispute” does not enliven a general advisory jurisdiction whenever parties have different views on what an Act requires. There must be a concrete dispute, such as a money claim. In this respect, and in others noted below, I consider that the Tribunal has fallen into legal error. In effect, the Owners have come to the Tribunal simply asking: “What does this section mean?””[6]
[4]In Pomroy and Ors v Emmetlow Pty Ltd [2012] QCAT 492 Member Fiona Fitzpatrick, at paragraph 11 described the dispute as essentially one where “in effect, the homeowners and the park owner disagree about how the utility charging provisions of the Act should be interpreted and how they might operate in practice in manufactured home parks.”
[5]Emmetlow Pty Ltd v Pomroy and Ors [2013] QCATA 186 is the decision of Dr JR Forbes, Member.
[6] Emmetlow Pty Ltd v Pomroy and Ors [2013] QCATA 186 at paragraph 9.
The appeal tribunal observed that in the case before it on appeal:
“The Owners have not alleged or particularised any unlawful charges; nor have they attempted to quantify a money claim”[7].
[7] Ibid at paragraph 8.
Further, the appeal tribunal found that:
“…in the absence of a concrete dispute, the questions raised by the Owners (and by Colonial) about the meaning and proper application of section 99A are hypothetical. There is considerable authority that a declaratory power, flexible as it is, does not usually warrant the expression of advisory opinions on hypothetical questions. “Declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions”. There must be evidence and factual findings, and a “conclusive or final decision based on a concrete and established or agreed situation” before discretionary relief is granted. Those requirements are not satisfied in this case. The pressure upon the Tribunal’s already-stretched resources would be intolerable if were to become a bureau for legal advice and advisory decrees”[8].
[8] Ibid at paragraph 13.
The tribunal in this case is bound by the appeal tribunal's decision. As a result, the tribunal in this case cannot follow the original decision in Pomroy.
In Pomroy, the learned member prefaced his remarks by stating that questions raised for determination must relate to a “concrete dispute”. Further, by stating that the owners have not attempted to quantify money claim, it is clear that the dispute must relate to a money claim and the applicants must attempt to quantify the money claim. I am of the view that in this case, there is no "concrete dispute" or "money claim"[9] that has been brought to the tribunal by the applicants. The applicants have not particularised the claim by reference to a particular sum of money or otherwise. In short, there is no stated money claim. I accept the submission on behalf the respondent[10] to the effect that instead, the applicants have really come to the tribunal and asked "is the park owner complying with section 99A?” or "can network and infrastructure charges be passed on under section 99A?" without any substantiating particulars or evidence to suggest that the respondent is not complying with its obligations[11].
[9] I adopt the wording used by Member Dr JR Forbes.
[10] As stated at paragraph 23 of the respondent’s submissions filed on 18 October 2013.
[11]In submissions, the applicant home owners say that "no monies have been returned at this point as regards to charging of network and infrastructure costs."
I accept the submission by the respondent that the only particularised money claim which was originally brought is a claim for the service fee to be refunded. This however is no longer the subject of dispute as the respondent has since refunded the service fee and the applicants are no longer in a position to press for that claim[12].
[12] See paragraph 24 of the respondent’s submissions.
The case for the home owners fails because:-
a) In relation to the first and the fourth of their four claims they seek an order of the tribunal to compel performance of an “obligation” on the park owner which is not contained in the legislation. It is not for the tribunal to create an obligation upon park owners which does not otherwise exist in the legislation.
b) In relation to the second of their four claims they seek an order of the tribunal to provide a refund to the home owners of money overcharged on electricity invoices. While at first this may appear to be a money claim, in essence what is sought is no more than a declaration or an advisory opinion on the proper construction of section 99A of the Act. At no point do the applicants make a claim for a specific amount of money to be paid to any one or more homeowners. For the tribunal to go further it would need to make a determination in relation to the question whether network and infrastructure charges included in an account from an energy supplier to the park owner can be passed on to the home owners. In support of their claim and the homeowners argue as follows:
"Even though the Park Owners as part of their response have given copies of their supply invoices and some adjustment credits they did not credit network and infrastructure charges. Once we received their supplier invoices the overcharging of network and infrastructure costs became more apparent. An example of their supply invoices with the network and infrastructure charges highlighted is attached… Also these charges are still being included in the calculation of the Home Owners electricity rates at present. Park management now appear to be calculating Home Owners power bills by the right formula, but are incorrectly incorporating the network and infrastructure charges. By including these costs into the Home Owners power rate means the Home Owners are subsidising the tourists’ side of the park. The more tourists that fill the park the higher home owners’ electricity rates become. Home owners are supporting in a huge way the power for the common grounds, outside lighting and amenities that only cater for the tourist section. There is nothing in the home owners’ agreement to support this. Network and infrastructure charges total about 55% of the park's total invoice. This is spread over 13 extra network charges. The homes are only 29% of the Park. We also attach a letter from park owners advising home owners of their new electricity sale agreement with AGL, with no mention of network or infrastructure charges. Here we refer to … the information sheet from Queensland Government Department of Housing and Public Works, which indicates that correct reading and understanding of section 99A of the Manufactured Homes Act 2003. In the case of electricity supply, section 99A requires that only the actual cost of electricity is passed on to the homeowner and no extra fees or charges are included to the home owners’ electricity bill. To us this is saying that the network and infrastructure charges should not be included in the calculation of the home owners’ power bills.”[13]
With respect to the applicant, it is not possible for the tribunal to manufacture a case for the applicants amounting to a money claim from this material. It is not possible to make an order based on evidence and factual findings from this material. The situation here is similar to that which presented itself in the Pomroy case where, in that case, Member Dr JR Forbes concluded (in reference to the case presented by the homeowners) that "they have come to the Tribunal without crystallising issues that can properly decide.[14]"
c) In relation to the third of their four claims they seek an order of the tribunal to provide a refund claimed as reimbursement of adjustments made by the park owner for undercharged electricity from 1 July 2011. The material discloses that in an attempt to comply with the obligations imposed upon it pursuant to section 99A of the Act, the park owner has made a series of adjustments to the original accounts sent to the home owners. In support of this claim the applicants argue as follows:
“The homeowners received not only one adjustment invoice, but 4 and in some cases 5 attempts over several weeks, all made by the Park management to make these so-called adjustments. This was very confusing for most residents who could not follow how calculations had been done. The adjustments were impossible to follow, especially after the Park management had made several attempts, each time with different results.”[15]
This statement is in contrast to the statement made by the applicants in final submissions.
"The so-called adjustments to our already paid electricity accounts from 1 July 2011 to 31st of December 2011, again they have been credited to all accounts but one of the applicants, Mr and Mrs Liversidge. These people would have been the largest consumer of electricity in the park due to health reasons. Mr and Mrs Liversidge sold their home and moved from the park on 13 May 2013. We feel these people being one of the 28 applicants are entitled to their credits. They have given written authority for monies to be collected by the home owners’ committee on their behalf, but with no results as yet."
From these statements the tribunal is of the view that the applicants have abandoned any money claim they may have collectively brought claiming a refund as result of faulty adjustment calculations by the park owner. The claim appears to be abandoned save for a claim on behalf of Mr and Mrs Liversidge. In this regard however there is no monetary orders sought nor, from the information provided, is it possible for the tribunal to calculate an appropriate amount in any event. The tribunal cannot determine a money claim from this part of the applicants’ case.
[13]This extract is taken from the submissions on behalf of the applicants provided undercover of letter to the tribunal dated 18 September 2013.
[14] Emmetlow Pty Ltd v Pomroy and Ors [2013] QCATA 186 at paragraph 14
[15]The material quoted is an extract taken from the supporting material filed by the applicants with the application at first instance.
For the homeowners to obtain relief[16] in a claim made pursuant to section 99A of the Manufactured Homes (Residential Parks) Act 2003 they must establish that:
[16]In this context, the term means relief pursuant to the Manufactured Homes (Residential Parks) Act 2003. Section 5 of the Act provides that a right or remedy given to a person under the Act is in addition to, and not in substitution for a right or remedy the person would have apart from the Act. The Act does not operate to reduce the effect of a right or remedy the person would have apart from the Act.
a) The park is a “residential park”, to which the Manufactured Homes (Residential Parks) Act 2003 applies[17].
[17] Manufactured Homes (Residential Parks) Act 2003 s 12.
b) They are “home owners” for the purposes of the Act[18] and the dispute is with a “park owner” for the purposes of the Act[19].
[18] Ibid s 8(1).
[19] Ibid s 11.
c) The home owner occupies a “site” in the residential park for the purposes of the Act[20].
[20] Ibid s 13.
d) There is a “site agreement” between home owners and the park owner[21].
[21] Ibid s 14.
e) The site agreement relates to a “manufactured home” as defined in the Act[22].
[22] Ibid s 10.
f) There is a "site agreement dispute" before the tribunal as envisaged by the enabling legislation[23].
g) Under the site agreement, the home owners are required to pay the park owner for the use by the home owner of a “utility” at the site[24].
h) The use is separately measured or metered[25].
i) The park owner is charging the home owners an amount for the use of the utility.
j) The park owner is charging the homeowners an amount for the use of a utility that is more than the amount charged by the relevant supply authority for the quantity of the service applied to, or used at, the site[26].
k) The dispute relates to a utility as defined in the Act, relating to electricity, gas, sewerage, water or another service prescribed under a regulation[27].
l) The home owners allege or particularise an amount they claim is an unlawful charge[28].
m) The home owners attempt to quantify a money claim as result[29].
n) The home owners must establish a "concrete dispute", such as a money claim[30]. The home owners must crystallise issues sufficiently to enable the tribunal to properly decide the matter[31].
o) In bringing an application, the home owners bear the onus of proof.
[23]The enabling legislation is the Manufactured Homes (Residential Parks) Act 2003. This requirement is established by Member Dr JR Forbes in Emmetlow Pty Ltd v Pomroy and Ors [2013] QCATA 186 at paragraph 9. In particular, a site agreement dispute is defined in section 14A of the Act.
[24] Manufactured Homes (Residential Parks) Act 2003, s99A(1)(a).
[25] Ibid s 99A(1)(b).
[26] Ibid s 99A(2).
[27]Manufactured Homes (Residential Parks) Act 2003, Dictionary. Tamberra Pty Ltd as trustee for the Max Ahlfeld Family Trust Sugar Coast Relocatable Homes v Murray and Ors [2012] QCAT 553; Bates v Seachange (Land) Pty Ltd as trustee [2012] QCAT 289
[28] Emmetlow Pty Ltd v Pomroy and Ors [2013] QCATA 186 at paragraph 8.
[29] Ibid at paragraph 8.
[30]Ibid at paragraph 9. This tribunal notes the comments made by Member Dr JR Forbes, at paragraph 12; "…it is doubtful, to say the least, whether the Tribunal has power to grant a declaration in isolation from other, substantive relief”.
[31] Emmetlow Pty Ltd v Pomroy and Ors [2013] QCATA 186 at paragraph 14.
The tribunal must ensure like cases treated alike[32]. The decision in the Pomroy case[33] makes it clear that applicant home owners must do more than make a generalised complaint for consideration by the tribunal if they wish to obtain a successful outcome. It is not sufficient that they point to raw data and invite the tribunal to make a case for them. The tribunal cannot economically resolve disputes[34] before it if it is presented with copious amounts of financial and other material and invited, in effect, to "make something of this". One of the objects of the Queensland Civil and Administrative Tribunal Act 2009 is to have the tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick[35]. The tribunal cannot, nor should it be expected to, construct a case for one party when presented with raw material and little more.
[32] Queensland Civil and Administrative Tribunal Act 2009, s(d)4.
[33] Emmetlow Pty Ltd v Pomroy and Ors [2013] QCATA 186.
[34]One of the functions of the tribunal is to encourage the early economical resolution of disputes before the Tribunal. Queensland Civil and Administrative Tribunal Act 2009, s3(b).
[35] Queensland Civil and Administrative Tribunal Act 2009, s4(b).
In this case the home owners have not particularised an amount they claim is an unlawful charge, they have not attempted to quantify a money claim and therefore had not established a concrete dispute. The tribunal finds that the applicants therefore seek declaratory relief, which is sought in isolation of substantive relief. The home owners have not crystallised issues sufficiently well to enable the tribunal to properly decide their claim. There must be a claim part evident to the tribunal to enliven the jurisdiction of the tribunal.
There is no ‘claim part’ of the applicants requested orders that overcomes the jurisdictional hurdle and therefore none of the claims fall within the jurisdiction of the tribunal to be determined. The tribunal does not therefore have jurisdiction to determine these proceedings and the proceedings are dismissed.
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