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  • Unreported Judgment

Reid v Sundale Pty Ltd

 

[2019] QCAT 296

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Reid v Sundale Pty Ltd t/as Monte Carlo Caravan Park [2019] QCAT 296

PARTIES:

THOMAS REID

(applicant)

 

v

 

SUNDALE PTY LTD T/AS MONTE CARLO CARAVAN PARK

(respondent)

APPLICATION NO/S:

OCL068-16

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

26 September 2019 

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Deane

ORDERS:

  1. In the circumstances of this case, section 157 of the Manufactured Homes (Residential Parks) Act 2003 (Qld) (‘the Act’) does not apply to require that any site agreement between Thomas Reid and Sundale Pty Ltd t/as Monte Carlo Caravan Park must reflect the terms of the agreement prior to the amendment to the Act in 2010.
  2. The application is listed for a Directions Hearing in Brisbane on a date to be advised.

CATCHWORDS:

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – GENERAL APPROACHES TO INTERPRETATION – WORDS TO BE GIVEN LITERAL AND GRAMMATICAL MEANING – GENERAL PRINCIPLES – whether section 157 of the Manufactured Homes (Residential Parks) Act 2003 (Qld) applies – whether agreement was entered into under or purportedly under the Manufactured Homes (Residential Parks) Act 2003 (Qld) – whether agreement was for the positioning of a converted caravan on a site

Acts Interpretation Act 1954 (Qld), s 14B

Manufactured Homes (Residential Parks) Act 2003 (Qld), s 10, s 10A, s 14, s 25, s 157, s 169, sch 2

Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 7

Transport Operations (Road Use Management) Act (Qld) 1995, sch 4

Transport Operations (Road Use Management – Mass, Dimensions and Loading) Regulations (Qld) 2005, s 25

Limbada & Ors v Ahearn & Ors [2005] QDC 164

Monte Carlo Caravan Park Ltd v Curvey & Anor [2007] 2 Qd R 57

Rezaee and Anor v Queensland Building Services Authority [2011] QCATA 335

REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

G Bunney, Chief Executive Officer

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

  1. [1]
    Mr Reid resides at the Monte Carlo Caravan Park (the Park), which has been owned by Sundale Pty Ltd (‘Sundale’) since July 2014.  He commenced these proceedings against Sundale seeking a variation to a site agreement. He contends that he is entitled to a site agreement on the same terms as ‘the agreement of 17 December 2008’ by reason of section 157 of the Manufactured Homes (Residential Parks) Act 2003 (Qld) (‘the Act’).[1] 
  2. [2]
    The Tribunal directed[2] that the following preliminary point should be decided:

Whether in the circumstances of this case, s 157 of the Manufactured Homes (Residential Parks) Act 2003 (Qld) (‘the Act’) applies so that any site agreement between Thomas Reid and Sundale Pty Ltd t/as Monte Carlo Caravan Park must reflect the terms of the agreement prior to the amendment to the Act in 2010.

  1. [3]
    The Act was amended by the Manufactured Homes (Residential Parks) Amendment Act 2010 (Qld) (‘the Amendment Act’). The Amendment Act amended the definition of ‘manufactured home’ to clarify that ‘converted caravans’ are not ‘manufactured homes’.[3] 
  2. [4]
    The Amendment Act inserted transitional provisions into the Act including section 157, which provides:
  1. (1)
    This section applies to an agreement, that would be a site agreement if it related to a manufactured home, between a park owner and a home owner providing for the positioning of a converted caravan on a site and –
    1. entered into under, or purportedly under, this Act; and
    2. in force immediately before assent.
  2. (2)
    Despite the amended Act, other than this section, and subject to section 169, the agreement –
    1. is taken to be a site agreement; and
    2. continues, under this Act, according to its terms.
  1. (3)
    In this section –

amended Act means this Act as amended under the amending Act. 

  1. [5]
    The Amendment Act received assent on 5 November 2010.
  2. [6]
    The parties were directed to file a statement of agreed facts and disputed facts[4] and file any documents which support the facts[5] which addressed the following:
    1. (a)
      Whether there is a current agreement in place between the parties;
    2. (b)
      The nature of any such agreement i.e. whether it is verbal or written;
    3. (c)
      When any such agreement commenced;
    4. (d)
      Whether Mr Reid has, at any time, been a party to an agreement for the positioning of a converted caravan on a site; and
      1. If so, when that agreement was in place and
      2. If so, the name of the other party to the said agreement.
  1. [7]
    The parties both filed documents in purported compliance with the directions but it seems they did not attempt to confer to produce one statement as contemplated by the direction or, if they did confer, neither of them mention it.[6] 
  2. [8]
    Upon comparing the submissions filed, there appear few facts which are expressly agreed. In part this is because Sundale’s involvement with the Park commenced in 2014 and its responses appeared to be constrained by the documents it could locate.
  3. [9]
    The parties were also directed to file submissions in relation to the determination of the preliminary point.[7]  Neither party requested an oral hearing. The preliminary point is to be determined on the papers.[8]
  4. [10]
    The delay in finalising the determination of the preliminary point is regrettable and relates to resourcing issues.

Background

  1. [11]
    The evidence before the Tribunal is that:
    1. (a)
      Mr Reid has resided at the Park since 2006 having entered the Park in a motor home.[9] 
    2. (b)
      In December 2008 he signed an agreement when he asked for permission to change to a larger site and position a ‘squareline caravan and hard annex on the new site.’[10] 
    3. (c)
      The form of agreement signed by Mr Reid on 22 December 2008 is a Form 18b Moveable Dwelling Tenancy Agreement, which refers to sections 233 and 234 of the Residential Tenancies Act 1994 (Qld) (‘RTA’) .[11] 
    4. (d)
      The 2008 agreement stipulated that:
      1. the periodic agreement commenced on 17 December 2008 and describes the moveable dwelling as ‘Caravan & Annexe’.[12]
      2. it was made under section 39 of the RTA.[13]
  2. [12]
    The RTA was replaced by the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (‘RTRA’). Relevant definitions in the RTA were replicated in the RTRA.
  3. [13]
    There is evidence before me that:
    1. (a)
      on or about 11 September 2012 Mr Reid requested conversion of his agreement to a site agreement under the Act.
    2. (b)
      on or about 31 January 2013, the Department of Public Works & Housing requested he complete and return a form to allow it to assist the then park owner to assess his request. There is no evidence before me that he completed and returned the form. 
  4. [14]
    Mr Reid previously sought assistance from the Tribunal.[14] In the earlier proceedings against the then park owner he sought a variation to the same site agreement and alleged contraventions of the Act.[15]  He sought an order that the park owner prepare at its cost and provide to him a written site agreement in accordance with section 25 of the Act. Mr Reid contended in those proceedings that his home is a ‘manufactured home’ for the purposed of the Act rather than a ‘caravan’.
  5. [15]
    The Act adopts the RTRA definition of ‘caravan’.[16]
  6. [16]
    The definition is as follows:
  1. (1)
    A caravan is a trailer—
  1. (a)
    designed principally for residential purposes; and
  1. (b)
    designed to be attached to and towed by a self-propelled vehicle; and
  1. (c)
    that, as originally designed, was capable of being registered under a law of the State about the use of vehicles on public roads.
  1. (2)
    Also, a caravan is something—
  1. (a)
    not fitted with wheels; and
  1. (b)
    not designed for permanent attachment to land but designed for attachment to a motor vehicle and for use for residential purposes.
  1. (3)
    In addition, a caravan is a self-propelled vehicle—
  1. (a)
    that—
  1. (i)
    is designed to be used both as a vehicle and for residential purposes; or
  1. (ii)
    was designed to be used solely as a vehicle but has been modified to be suitable for use both as a vehicle and for residential purposes; and
  1. (b)
    that, as originally designed, was capable of being registered under a law of the State about the use of vehicles on public roads.
  1. [17]
    The definition of ‘caravan’ has been considered by the District Court.[17]  His Honour McGill DCJ considered that for the purposes of 1(c) ‘designed’ should be construed as ‘constructed’.[18] 
  2. [18]
    Mr Reid described his home as consisting of a ‘squareline caravan’ which is integrated with a ‘Bondor Panel’ annex structure.  There is no evidence before me as to when Mr Reid’s squareline caravan was constructed.
  3. [19]
    At about the time of the earlier proceedings, there were related proceedings in the Tribunal involving a group of residents from the Park (‘the Group Proceedings’).[19]  Directions in the Group Proceedings applied to Mr Reid’s earlier proceedings and Mr Reid represented the residents.
  4. [20]
    A statutory declaration signed by Mr Reid on 29 June 2014 was filed in the Group Proceedings.[20]  He gave evidence that

I transported the home to the site in 2008. It was purchased off site as an integrated unit and transported by truck in two parts and reconstructed on site. I have made no structural alterations to the original dwelling other than by renovation or cosmetic change for example painting.

  1. [21]
    Upon transfer of the Park to it, Sundale was joined to the earlier proceedings and OCL086-13 on 22 July 2014.
  2. [22]
    As at December 2008, the Transport Operations (Road Use Management – Mass, Dimensions and Loading) Regulations (Qld) 2005 by s 25(1) provided that a person must not drive a vehicle on a road if the vehicle is wider than 2.5m.
  3. [23]
    I am satisfied that, as at December 2008, this provision applied to a trailer as the Transport Operations (Road Use Management) Act (Qld) 1995[21] defined:
    1. (a)
      ‘trailer’ to mean ‘a vehicle that is built to be towed, or is towed, by a motor vehicle, but does not include a motor vehicle being towed’;
    2. (b)
      ‘vehicle’ to include ‘any type of transport that moves on wheels and a hovercraft but does not include a train or tram.’[22]
  4. [24]
    His Honour McGill DCJ in Limbada[23] accepted that the 2.5 metre (or its imperial equivalent) restriction on width had been in place since 1969.
  1. [25]
    The term squareline caravan is not defined in the RTRA or the Act. Mr Reid contends that his squareline caravan is, and always was, over 2.5 metres wide.  There is no evidence to the contrary before me as to how wide the structure was originally or how wide the structure is currently. In the absence of any other evidence, I accept Mr Reid’s evidence that it was always over 2.5 metres wide.
  2. [26]
    Mr Reid submits that it was therefore too wide to be registered under transport legislation. Accordingly, he submits, it did not meet the definition of caravan as it is not, and was not capable of being, registered for use on public roads per the definition of caravan under s 7(1)(c) of the RTRA.
  3. [27]
    By consent, Sundale was ordered to provide to Mr Reid a standard form of Manufactured Home Site Agreement together with any special terms and conditions no later than 4:00pm on 11 December 2014.[24] 
  4. [28]
    There is evidence before me that an inspection was carried out of Mr Reid’s structure shortly before the directions hearing in the earlier proceedings. I infer that the inspection lead to the consent order. The report, if one was produced, or any documented evidence of the inspection is not before me in these proceedings.
  5. [29]
    I have located a copy of a short engineer’s report filed by Sundale in the Group Proceedings.[25]  The engineer considered whether structures as a whole should be considered a manufactured home under the Act. I was unable to identify a particular reference to Mr Reid’s structure. Sundale’s submissions, to which the report was attached, acknowledge that Mr Reid had been identified as an applicant to whom a site agreement under the Act had been, or would be, offered.[26]
  6. [30]
    I also infer from the consent order that Sundale conceded that Mr Reid’s structure was a ‘manufactured home’ for the purpose of the Act.
  7. [31]
    A form of site agreement was provided to Mr Reid. The parties have unsuccessfully attempted to negotiate the terms, which resulted in Mr Reid commencing these proceedings.
  8. [32]
    The Amendment Act inserted into the Act a definition of a ‘converted caravan’ as

a structure that –

  1. (a)
    as originally designed, was a caravan; and
  2. (b)
    is no longer a caravan because of a structural addition or structural alteration.[27]

Does section 157 of the Act apply?

  1. [33]
    I find that section 157 of the Act does not apply to Mr Reid’s circumstances for the reasons set out below.

Was there an agreement between a park owner and Mr Reid providing for the positioning of a converted caravan on a site entered into under or purportedly under the Act and in force immediately before assent?

  1. [34]
    I find that the agreement in force immediately before assent was not an agreement providing for the positioning of a converted caravan on a site nor was the agreement entered into under or purportedly under the Act.
  2. [35]
    I consider each element below.

What agreement was in force immediately before assent?  Was it entered into or purportedly entered into under the Act?

  1. [36]
    I find that an agreement evidenced in writing signed by Mr Reid on 22 December 2008 (‘the 2008 Agreement’) was in force immediately before assent of the Amendment Act but that it is not an agreement entered into or purportedly entered into under the Act.
  2. [37]
    Mr Reid contends that the 2008 Agreement ought to be regarded as the operative agreement between the parties.
  3. [38]
    The copy of the 2008 Agreement in evidence before me is signed by Mr Reid and witnessed. It is not signed on behalf of the lessor although a witness has signed as if they had witnessed the lessor’s signature as well as Mr Reid’s signature. There is no evidence before me as to the identity of the witness. It states that the agreement commenced on 17 December 2008.
  4. [39]
    There is no evidence before me about whether the lessor signed this agreement. On the basis of the evidence before me, I find that it is more likely than not that the parties conduct was consistent with the terms of this written agreement. The agreement was therefore in writing or at least partly in writing and partly by conduct.
  5. [40]
    The 2008 Agreement on its face was not entered into under the Act. It expressly refers to the RTA and not the Act.
  6. [41]
    Mr Reid contends that the 2008 Agreement was issued by the then park owner in error and that it ought to have issued a site agreement under the Act and therefore it ought to be regarded as an agreement ‘purportedly’ under the Act for the purposes of section 157 of the Act.
  7. [42]
    He points to four matters, which he says supports his submission.
  8. [43]
    Firstly, Mr Reid points to provisions in the Trust Deed dated 13 April 1992 (‘Trust Deed’). Mr Reid similarly relied upon the Trust Deed in the earlier proceedings. There are documents provided to the Tribunal and to Mr Reid in respect of the earlier proceedings, which set out how the trust established under the Trust Deed was ended upon the appointment of the Public Trustee.[28] I am not satisfied the terms of the Trust Deed are relevant. In any event clause 6.1(iv) of the Trust Deed gave the former Trustee the power to enter into agreements with residents. The initial standard form agreement attached to the Trust Deed was available for use by the former Trustee but I am not satisfied that it was mandatory. Further, I am not satisfied that just because it was referred to as a ‘site agreement’ that it was therefore a ‘site agreement’ for the purposes of the Act, noting that the Act commenced in 2004 decades after the Trust Deed was entered into.
  9. [44]
    Secondly, he contends that the then park owner had been involved in litigation[29] where issues about what constituted a manufactured home had been decided. He argues that they were therefore aware of the relevant issues as to who was entitled to a site agreement under the Act but there was no attempt to ‘review existing leases or revise the issuing of new leases’.[30]
  10. [45]
    Thirdly, the report of the review of the Act, which lead to the Amendment Act was presented to Parliament in May 2008 (‘Outcome Report’).[31]  Mr Reid submits that the then park owner ought to have been aware of the proposed amendments prior to the 2008 Agreement being presented to him for signing.
  11. [46]
    Fourthly, the Outcome Report discussed the issue of squareline caravans noting that

The Act currently provides that residents and park owner can agree whether a site agreement should be entered into under the Act, and if such agreement cannot be reached, the Tribunal can make a ruling....In several recent determinations, the Tribunal found that a “squareline” fell within the definition of a “manufactured home”.....An important part of the ...reasoning was that “squareline” did not come within the definition of “caravan”. [32]

  1. [47]
    The Outcome Report recommended no change to the Act in respect of ‘squareline’ caravans.[33]
  2. [48]
    The second, third and fourth points above are essentially a submission that the then park owner should have been aware that Mr Reid was entitled to a site agreement under the Act. I accept that whether or not an owner is entitled to a site agreement under the Act requires a consideration of the nature of the relevant structure.
  3. [49]
    In construing section 157 of the Act it is necessary to consider the objective intention of Parliament through a consideration of the words used. Generally words are to be given their ordinary meaning.[34] The use of extrinsic material may assist to confirm the ordinary meaning of the provision.[35]
  4. [50]
    ‘Purportedly’ is a term frequently used in legal contexts.[36]  Its ordinary meaning is ‘believed to be’ or ‘supposedly’.
  5. [51]
    There is no evidence before me that the 2008 Agreement was believed by either Mr Reid or by the then park owner to be issued under the Act. Mr Reid’s evidence is that in 2008 he was unaware of the different types of leases.[37]  There is no evidence before me as to the level of information the then park owner had about Mr Reid’s proposed structure prior to the 2008 Agreement such that I could be satisfied that, more likely than not, it believed it was entering into a site agreement under the Act. The photographs in evidence before me are dated 2011 and 2014, which is of no real assistance in establishing the nature of the structure in 2008.[38]  There is some evidence before me that Mr Reid’s structure came ‘into the park on wheels.’[39] 
  6. [52]
    This is not a situation where an agreement had been entered into which was expressed to be under the Act but which was not strictly in compliance with the Act’s requirements. Nor is it a situation where there is evidence that both parties believed they were entering into a site agreement under the Act but that the document signed did not accord with that mutual intention.
  7. [53]
    Mr Reid has referred me to the Explanatory Notes for the 2010 Amendment bill. The Explanatory Notes outline that the amendments were to provide more certainty about whether or not the Act applies to converted caravans and to allow park owners and owners of a converted caravan to agree to enter into a site agreement under the Act if they prefer[40] and to clarify that agreements in respect of converted caravans existing at that time would not be affected and to allow converted caravan owners to apply to the Tribunal within three years for orders whether the owner is entitled to a site agreement under the Act.[41]
  8. [54]
    The Outcome Report and Explanatory Notes suggest that prior to the Amendment Act many parties entered into agreements under the RTA because at the time that the structure was positioned at the relevant park it was a ‘caravan’ but over time there were unapproved modifications to the caravan, which converted the caravan into a ‘manufactured home’. The significance is that by doing so the owner of the structure improved their rights and this improvement of position was without the express agreement of the park owner. They became entitled to a site agreement under the Act rather than an agreement under the RTA or RTRA.
  9. [55]
    The Outcome Report and Explanatory Notes also suggest that some park owners and owners deliberately chose to enter into site agreements under the Act even though the structure was not strictly covered under the Act, or there was some doubt. Construing the Act as amended in light of this context, I would regard those agreements as agreements entered under the Act or purportedly entered into under the Act.
  10. [56]
    There is no evidence before me that Mr Reid and the then park owner deliberately chose to enter into a site agreement under the Act. Indeed the evidence is to the contrary.
  11. [57]
    Sundale appears to concede that the 2008 Agreement was in force prior to assent although it submits that the current agreement is a written agreement signed 31 August 2011, which commenced on 22 August 2011 (‘the 2011 Agreement’). The 2011 Agreement is signed by both Mr Reid and on behalf of the lessor although neither signature is witnessed.
  12. [58]
    Mr Reid’s evidence is that in 2011 he was informed that the Park’s management did not hold a copy of a written agreement for his site. He concedes that he signed another document in 2011. He submits that he signed a blank document ‘under duress’. I have not conducted a detailed comparison of the agreements nor considered whether the 2011 Agreement[42] should be regarded as the current agreement, as it is, in my view, not necessary for a consideration of the preliminary point.
  13. [59]
    The 2011 Agreement is a Form 18b Moveable Dwelling Tenancy Agreement, which refers to the RTRA.

Was the 2008 Agreement in respect of a converted caravan?

  1. [60]
    The 2008 Agreement, which was entered into for the positioning of Mr Reid’s structure, was not an agreement for the positioning of a converted caravan on a site. 
  2. [61]
    Perhaps somewhat surprisingly, Mr Reid disputes he has a converted caravan.[43]  Sundale submits that Mr Reid’s structure is a converted caravan. It points to various photographs, which show a change in appearance of the structure over time. As stated earlier, there are no photographs before me showing the appearance of the structure at the time of the 2008 Agreement.
  3. [62]
    As referred to earlier in these reasons, Mr Reid submits that his ‘squareline’ was never a caravan for the purposes of the definitions as it was always too wide to be registered for use on public roads and therefore cannot be a converted caravan. 
  4. [63]
    There is little evidence as to Mr Reid’s structure in the documents filed in these proceedings. Mr Reid’s evidence is that it is 2.7 metres wide, which has not been changed since purchased. I accept that a structure at 2.7 metres wide is not a converted caravan because it could not have been registered for use on public roads and therefore falls outside of the definition of caravan, which forms part of the definition of converted caravan. I accept that Mr Reid’s structure is not, and was not, a converted caravan.

Summary

  1. [64]
    Section 157 of the Act only applies to agreements for the positioning of a converted caravan.
  2. [65]
    It does not apply to Mr Reid’s circumstances. The agreement in force immediately before assent was not entered into or purportedly entered into under the Act and it was not an agreement for the positioning of a converted caravan.
  3. [66]
    Mr Reid’s application states that if his reading of section 157 of the Act is incorrect he has other concerns as to the site agreement proposed by Sundale. I have not considered whether the Tribunal has jurisdiction to entertain the remaining dispute. A directions hearing should be convened to determine the future conduct of the matter.

Footnotes

[1]  Filed 28 November, 2016.

[2]  Direction dated 24 February 2017, no 1.

[3]  The Act, s 10(2).

[4]  Direction dated 24 February 2017, no 3.

[5]  Ibid, no 4.

[6]  Mr Reid’s submission filed 24 March 2017; Sundale’s submission filed 22 March 2017.

[7]  Direction dated 24 February 2017, nos 5, 6 and 7.

[8]  Ibid, no 9.

[9]  Mr Reid’s submission filed 20 February 2017, [24].

[10]  Ibid; Mr Reid’s submission filed 24 March 2017, [5]-[6].

[11]  Mr Reid’s submission filed 24 March 2017, Appendix 3.

[12]  Ibid, Item 5(b).

[13]  Ibid, Part 2, cl 1.1.

[14]  OCL079-13 filed 29 October 2013.

[15]  The Act, ss 10, 14, 25.

[16]  Ibid, sch 2 (definition of ‘caravan’), RTRA, s 7.

[17] Limbada & Ors v Ahearn & Ors [2005] QDC 164.

[18]  Ibid, [24], footnote 9.

[19]  OCL086-13.

[20]  Filed 4 July 2014.

[21] Reprint 10B in force on 1 December 2008.

[22]  Ibid, sch 4.

[23]  [2005] QDC 164, [26].

[24]  Direction dated 9 December 2014.

[25]  Filed 5 December 2014.

[26]  Ibid, [15].

[27]  The Act, s 10A.

[28]  Letter Crown Solicitor to Mr Reid dated 6 June 2014.

[29] Monte Carlo Caravan Park Ltd v Curvey & Anor [2007] 2 Qd R 57.

[30]  Mr Reid’s submission filed 7 April 2017, [1b].

[31]  Ibid, attachment.

[32]  Ibid, 15.

[33]  Ibid, 15-16.

[34] Rezaee and Anor v Queensland Building Services Authority [2011] QCATA 335.

[35] Acts Interpretation Act 1954 (Qld), s 14B.

[36]  I referred to the parties’ purported compliance with the directions earlier in these reasons. They made an attempt to comply but the documents filed were not strictly compliant.

[37]  Mr Reid’s submissions filed 20 February 2017, [24].

[38]  Sundale’s submissions filed 22 March 2017, part of Appendix 6.

[39]  Ibid, part of Appendix 4, email from resident manager dated 7 August 2013.

[40]  The Act, s 10(3).

[41]  Ibid, s169.

[42]  Sundale’s submission filed 22 March 2017, part of Appendix 3.

[43]  Submission filed 11 May 2017.

Close

Editorial Notes

  • Published Case Name:

    Thomas Reid v Sundale Pty Ltd t/as Monte Carlo Caravan Park

  • Shortened Case Name:

    Reid v Sundale Pty Ltd

  • MNC:

    [2019] QCAT 296

  • Court:

    QCAT

  • Judge(s):

    Member Deane

  • Date:

    26 Sep 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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