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  • Unreported Judgment

Priddy and Ors v M and T Entriken Pty Ltd and Anor

 

[2020] QCAT 107

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Priddy and Ors v M and T Entriken Pty Ltd and Anor [2020] QCAT 107

PARTIES:

Kenneth Leonard PRIDDY and ORS

 

(applicants)

 

v

 

M and T Entriken Pty Ltd

Entriken ORGANISATIONS Pty Ltd

T/as HazelmeRE Village Home Park

 

(respondents)

APPLICATION NO/S:

OCL058-18

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

14 April 2020

HEARING DATE:

19 November 2019

HEARD AT:

Hervey Bay

DECISION OF:

Member Milburn

ORDERS:

  1. The Tribunal reduces the amount of the increase in site rent by $1.95 per week (reducing the site rent from $219.45 per week to $217.50 per week).
  2. The decision of the Tribunal is to be delivered to the parties by email.

CATCHWORDS:

REAL PROPERTY – MANUFACTURED HOMES – SITE AGREEMENT DISPUTE – market review – application to reduce site rent increase in a residential park – where the range of site rents charged for comparable sites in comparable residential parks in the locality of the park considered – where the increased site rent compared to the previous site rental considered – where the frequency, and amount, of past increases in the site rent considered – where the amenity or standard of the common areas and communal facilities considered – whether any withdrawal, or addition, of a communal facility or service previously provided at the park – whether the increase is fair and equitable in all the circumstances of the case

Manufactured Homes (Residential Parks) Act 2003 (Qld), s 4, s 8, s 10, s 12, s 13, s 14, s 14A, s 69, s 70

Matthews & Ors v Tamberra Pty Ltd ATF the Max Ahlfeld Family Trust t/as Sugar Coast Relocatable Estate [2014] QCAT 697

M & T Entriken Pty Ltd v Nicholson and Ors (No 2) [2015] QCATA 88

Nicholson v Hazelmere Village Home Park [2010] QCAT 678

APPEARANCES & REPRESENTATION:

 

Applicants:

K Priddy as lead applicant, representing all applicants

Respondents:

D Lang, solicitor of Lewis & McNamara Solicitors

REASONS FOR DECISION

  1. [1]
    The Respondents (‘the Park Owners’) own, and operate, a manufactured home[1] village in Hervey Bay called ‘Hazelmere Village Home Park’ (‘Hazelmere Village’).[2]
  1. [2]
    On 3 September 2018, the Park Owners issued a notice of increase in site[3] rent to the homeowners[4] in Hazelmere Village advising of their intention to increase the site rent payable under the site agreements[5] to $219.45 per week. Given the different homeowners were paying different rents under their respective site agreements, the increase in the site rent differed amongst various groups of homeowners.
  2. [3]
    The Applicants are many of the homeowners (‘the Home Owners’), and collectively they have an interest in 58 of the sites in Hazelmere Village. The Home Owners applied to the Tribunal about this general site increase.

Hazelmere Village

  1. [4]
    Hazelmere Village is situated approximately 2 km west of the Hervey Bay Post Office. It is within an area of established residential development and is near the Hervey Bay Golf Country Club and the Eli Waters Shopping Centre, which is a major shopping centre anchored by a Woolworths supermarket. The property is also adjoined by a freestanding complex that includes both Harvey Norman and Forty Winks retail outlets. The property abuts a lake area opposite the Palm Lakes Manufactured Home Park (‘Palm Lakes’). Services including shops and medical facilities are within
    1.5 km of Hazelmere Village.[6]
  2. [5]
    Hazelmere Village is:

…a fully developed Manufactured Home Park occupying an irregular shaped 4.77 ha site adjoined by Eli Waters Shopping Centre on one side and having parkland/lake access areas to the two other sites. [The] Property contains 101 residential sites with site areas ranging from 225 m² to 412 m². Common facilities include Manager’s Residence with Office and Reception, Community Hall with Book and DVD Library, Bowling Green with an outdoor pool with spa section.[7]

The Act

  1. [6]
    The main object of the Manufactured Homes (Residential Parks) Act 2003 (Qld) (‘the Act’) is to regulate, and promote fair trading practices in, the operation of residential parks to protect home owners from unfair business practices; and to enable home owners, and prospective home owners, to make informed choices by being fully aware of their rights and responsibilities in their relationship with park owners.[8]
  2. [7]
    The main object is achieved by (amongst other things) regulating the variation of site rent;[9] and providing ways of resolving a residential park dispute.[10] Another important object of the Act is encouraging the continued growth and viability of the residential park industry in the State.[11]
  3. [8]
    During the hearing, it was common ground that the Act applied to this residential park dispute.[12] The central question was whether the increase in site rent was excessive.[13] The Home Owners did not challenge the validity of the notice of increase in site rent. The only argument presented to the Tribunal related to whether the amount claimed was excessive.

The Tribunal’s power

  1. [9]
    The Tribunal may make any of the following orders:
    1. (a)
      an order reducing the amount of the increase by a stated amount;
    2. (b)
      an order setting aside the increase;
    3. (c)
      an order confirming the increase on the conditions, if any, the Tribunal considers appropriate;
    4. (d)
      another order the Tribunal considers appropriate.[14]

Was the increase excessive?

  1. [10]
    In deciding the application, the Tribunal may have regard to the following:
    1. (a)
      the range of site rents usually charged for comparable sites in comparable residential parks in the locality of the park;
    2. (b)
      if it is impractical to obtain data for the range of site rents mentioned in paragraph (a), data is not available for that range or it is just and equitable to do so in the particular circumstances—the range of site rents usually charged for comparable sites in comparable residential parks in comparable localities to the locality the park is in;
    3. (c)
      if it is impractical to obtain data for the range of site rents mentioned in paragraph (a) or (b), data is not available for that range or it is just and equitable to do so in the particular circumstances—general trends in rent for residential accommodation in the locality the park is in;
    4. (d)
      the increased site rent compared to the previous site rent;
    5. (e)
      the frequency, and amount, of past increases in the site rent payable under the agreement;
    6. (f)
      any increase in the CPI number during the previous site rent period;
    7. (g)
      the amenity or standard of the common areas and communal facilities;
    8. (h)
      any withdrawal of a communal facility or service previously provided at the park;
    9. (i)
      any addition of a communal facility or service not previously provided at the park;
    10. (j)
      any increase in the park owner’s operating costs for the park during the previous site rent period;
    11. (k)
      whether the increase is fair and equitable in all the circumstances of the case;
    12. (l)
      anything else the tribunal considers relevant.[15]
  2. [11]
    If, in deciding the application, the Tribunal makes an order reducing the amount of the increase by a stated amount or makes an order setting aside the increase, the Park Owners must refund to the Home Owners any overpayment of the site rent since when the increased site rent has been paid.[16] An amount payable to the home owner under such an order is recoverable as a debt.[17]
  3. [12]
    The Tribunal has jurisdiction to hear an application about general site rent increase disputes if:
    1. (a)
      a site agreement between the park owner for a residential park and a home owner provides for an increase in the site rent payable under the agreement; and
    2. (b)
      the park owner proposes to increase the site rent as provided for under the site agreement.[18]

Valuation

  1. [13]
    The Tribunal received one formal assessment of rent, in the form of a report prepared by Mr BTR Stanaway, Certified Practising Valuer, of John Watt and Associates Valuers and Development Consultants dated 20 August 2018 (‘the Valuation Report’). The date of assessment was 15 August 2018 and the Valuation Report was prepared for the Respondents ‘to assess market rental of a typical site on the basis of a Market Review made in accordance with section 70’[19] of the Act.
  2. [14]
    The Valuation Report was said to be prepared in accordance with rule 428 of the Uniform Civil Procedure Rules 1999 (Qld) (‘the UCPR’). In this jurisdiction, an expert report writer does not need to comply with the requirements for a report pursuant to rule 428 of the UCPR. But in this instance, in effect it does, and the Tribunal does accept it as an expert report and that Mr Stanaway is an expert in his field. He did confirm, at the end of the report that:
    1. (a)
      the factual matters stated in the report are, as far as the expert knows, true; and
    2. (b)
      the expert has made all enquiries considered appropriate; and
    3. (c)
      opinions stated in the report are genuinely held by the expert; and
    4. (d)
      the report contains reference to all matters the expert considers significant; and
    5. (e)
      the expert understands the expert’s duty to the court and has complied with the duty.
  3. [15]
    If there was a range of opinion on matters dealt with in the report, none were disclosed.
  4. [16]
    The Home Owners did not challenge the form of the report, the timing of the report being provided to them or the expertise of the report writer as an expert. The Tribunal allows a party to have a reasonable opportunity to call expert evidence. Generally, the Tribunal allows a party one expert from each field of expertise. In this instance the Home Owners have elected not to present any expert evidence. Accordingly, there was no requirement for an experts’ conclave and the preparation of a joint report.
  5. [17]
    The Valuation Report was prepared with the stated objective of providing an estimate of the market rent. The report writer stated that the International Assets Valuation Standards Committee defines ‘market rent’ as:

The estimated amount for which an interest in real property should be leased on the valuation date between a willing lessor and a willing lessee on appropriate lease terms in an arms-length transaction, after proper marketing and where the parties had each acted knowledgeably, prudently and without compulsion.[20]

  1. [18]
    The task of the Tribunal is not to determine the market rent. Its task is to determine whether the proposed increase in site rent is excessive. The Tribunal will invariably consider the market rent in that regard, but it must consider those factors as set out in section 70(5) of the Act which prescribes specific considerations within the context of determining ‘whether the increase is fair and equitable in all the circumstances of the case’[21] and ‘anything else the Tribunal considers relevant’.[22]
  2. [19]
    Mr Stanaway assessed that the market rent was in the range of $212.50 per week to $225 per week, plus water, as ‘within acceptable market parameters’.[23] Mr Stanaway determined that market rent of a typical site is assessed at $217.50 per week.[24]
  3. [20]
    The Respondents argued that they had arrived at an increased site rent amount of $219.45 per week, as this sum ‘fell within the range provided by Mr Stanaway’[25] and the Respondents considered the amount of the increase to be fair and equitable in the circumstances.

The range of site rents usually charged for comparable sites in comparable residential parks in the locality of the park

  1. [21]
    Mr Stanaway considered the appropriate site rent for Hazelmere Village by referring to four comparable residential parks in Hervey Bay. They were Golden Shores, Palm Lakes, Sugar Coast Village and Torquay Waters Home Park.

Golden Shores

  1. [22]
    Mr Stanaway described Golden Shores in these terms:[26]

Fully developed Over 50s Home Park occupying an irregular shaped 14.89 ha site and providing a total of 353 sites within the overall complex. Original development started in 1994 and was completed in late 2003. Approximately 100 sites are located in the northern section of the development with the balance of the sites on the larger southern part of the site which is accessed via a bridge over the overland flow path. Average sites of approximately 250 m².

Common facilities include:

  • Community Club House
  • Community Recreation Room
  • Seven Rink Bowling Green
  • Tennis Court
  • Two Swimming Pools with the larger of the two pools being a heated indoor 25 m pool with spa section to one corner and the overall pool area contained within a steel framed metal clad structure incorporating gymnasium, kitchenette as well as male and female change room facilities
  • Putting Green
  • Barbecue Area
  • Community Workshop
  1. [23]
    Mr Stanaway stated that current rents applicable are $202.50 per week for inside sites and $212.50 per week for premium sites with a further increase of approximately five dollars per week to apply from September 2018.

Palm Lakes

  1. [24]
    Mr Stanaway described Palm Lakes in these terms:[27]

12.24 ha site incorporating a lake area as well as perimeter waterway area. Overall development providing approximately 210 sites with the development incorporating:

  • Resort Club House
  • Beach style lagoon pool with barbecue with wet bar
  • Indoor heated lap pool
  • Therapeutic spa
  • Gym
  • Library
  • Bowling Green
  • Workshop
  • Caravan and Boat Storage
  1. [25]
    Mr Stanaway said that the rent applicable as at 2012 was $152.75 per week ‘with this rent being reflective of a developing park where the rent is considered to be subsidised within the development based on a higher-than-expected entry-level price for the homes’.[28]
  2. [26]
    Mr Stanaway went on to say that:

The owners of the park have now changed site agreements so that all residents are on agreements that provide for a rent of $380.59 per fortnight as from 1 July 2018 with water being an additional charge and having site rents based on annual reviews being CPI or 3.5%, whichever is the greater.

  1. [27]
    Mr Stanaway believes that three-yearly market reviews are still applicable for Palm Lakes.

Sugar Coast Village

  1. [28]
    Mr Stanaway described Sugar Coast Village in these terms:[29]

3.31 ha parcel providing 80 sites with common facilities including:

  • Committee Hall
  • Barbecue Area with Sunshield
  • Inground Swimming Pool, Spa, Sauna and Gym
  • Security Compound for Boats and Caravans
  • Convenience Shop
  1. [29]
    Mr Stanaway provided a historical statement of the rent applicable for sites in Sugar Coast Village from 2010 and referred to a decision of this Tribunal[30] which resulted in site rents from 1 February 2014 ranging from $159.50 per week to $170.15 per week. The property sold in 2015. He went on to say that:

Current rent applicable for incoming residents as from 1 February 2018 is $204.67 per week plus water, with this rent also applicable to sections of the park occupied by existing residents.

Torquay Waters Home Park

  1. [30]
    Mr Stanaway described Torquay Waters Home Park in these terms:[31]

Small park with an area of approximately 1.4 ha and providing 29 homesites with the only common area amenity being an inground pool.

  1. [31]
    Mr Stanaway said that rent applicable from 1 September 2018 is $194.56 per week with GST if applicable being an additional charge, as well as water.[32]

Hazelmere Village and the four comparable parks

  1. [32]
    Mr Stanaway provided the following general comments:[33]

The rental evidence included within this report comprises the main Manufactured Home Parks within the Hervey Bay area. In addition to these four parks, there are a number of mixed-use parks which have a limited number of sites subject to the Manufactured Homes Act included within the parks that cater for tourists as well. These parks are located in various areas of Hervey Bay but have not been utilised in assessing the rental applicable to the subject property.

Decisions within the Tribunal in regard to the subject property have concluded that the Palm Lakes facility located on the opposite side of the lake to the subject property is a superior facility. However, this facility has a totally different demographic to the subject property with homes within this park for sale at prices ranging from $370,000-$550,000 which is in comparison to the subject property which has selling prices up to $200,000.

Golden Shores has superior facilities but is a much larger park in a similar location with additional charges for caravan storage. Golden Shores having houses selling in the range of $200,000-$300,000. Torquay Waters is a small park with virtually no facilities but is located in a slightly superior position and has similar standard homes.

Sugar Coast is a similar standard facility in an inferior location and generally caters to the same demographics as the subject property with selling prices for houses mainly in the range of $150,000-$200,000. The most recent decision within the Tribunal indicates that Sugar Coast on an overall basis is considered to be inferior to Hazelmere Village with Sugar Coast having a current rental of $204.67 per week plus water for the majority of the residents. That is in comparison to rentals within the subject property for incoming residents of between $213.20 and $222.50 per week plus water. Overall it is considered that the best evidence of market rentals is the subject property, with the following sites the most recent entrants:

Site 70

5 March 2018

Site 58

15 March 2018

Site 5

22 June 2018

Site 16

2 August 2018

Site 89

3 August 2018

All of the sites are on agreements which provide for 5% annual increases with three yearly market reviews with all entrants due for a review as from 1 October 2018. Should the 5% annual increase be applied to the current rental of $213.20 for the majority of the sites, this would result in a rental of $223.86 per week. If this increase is applied to the $222.50 rental for site 89 this would result in a rental applicable from 1 October 2018 of $232.62. Whilst these increased rentals are considered to be at the upper end of the market expectations, the rental may be applicable to larger sites within the complex e.g. sites 7, 40, 78 and 101, but would be above market levels for smaller inside sites e.g. sites 41, 42, 67, 81 and 88.

Taking into account the following factors:

  • services available,
  • location of the property with major shopping centre adjoining and bus service at the door,
  • size of the sites with the majority having at least a 15 m frontage with the capability of on-site caravan storage,
  • there have been no withdrawal of facilities nor have there been any additional facilities provided,

it is my opinion that a market rental in the range of $212.50 per week to $225 per week plus water, is within acceptable market parameters. For the purpose of this assessment, market rental of a typical site is assessed at $217.50 per week.

The increased site rent compared to the previous site rent and the frequency, and amount, of past increases in the site rent payable under the agreement

  1. [33]
    A market review was carried out from 1 October 2009 with an appropriate site rent determined at $132.50 per week.[34]
  2. [34]
    Site rents were subject to a further review in October 2012, which resulted in a rent increase to $154.77 as per week.[35]
  3. [35]
    A further review resulted in a negotiated site rental of $187.50 per week applicable to approximately 65 sites, as from 1 October 2015. At the same time, the other sites were subject to a rent of $205 per week, excluding GST and water.
  4. [36]
    Of the 65 sites that were subject to a market review to $187.50 per week, approximately 39 residents had the rent increase in accordance with only CPI and they pay rental of $193.74 per week. Approximately 21 sites were subject to a rent increase to $201.36 per week with the annual increases being CPI and a formula. A further 15 sites have a current rent of $219.45 per week having been increased from $205.00 per week. 16 site residents make payment of $213.19 or $213.20 per week, with one resident paying $222.50 per week and seven residents paying $211.83 per week.
  5. [37]
    Mr Stanaway explained the discrepancies in rents between sites in these terms:

[The] variation in rents is caused by the residents having varied annual review clauses with some residents on CPI only, other residents on CPI plus rent formula annually and others on a on 5% annual increases. All residents now have three-year Market Review clauses and are due for review on 4 October 2018.

  1. [38]
    New entrants into the Hazelmere Village in the six months leading up to the Valuation Report had been subject to site agreements that provided for 5% annual increases with three-yearly market reviews. Entrants on four sites paid an initial rent of $213.20 per week plus water, while one site was subject to a rent of $222.50 per week.[36]
  2. [39]
    The Hazelmere Homeowners’ Committee (‘the Committee’) accepted that the site rent sought by the Park Owners are ‘most reasonable’ for some homeowners but not acceptable for others.[37] Specifically, the increases that were not acceptable to the Committee only related to those homeowners who would be required to pay an increase of either $18.09 per week or $25.71 per week. The Committee viewed only these increases as excessive.
  3. [40]
    Those homeowners who were not involved in the application to the Tribunal represent 42 sites, paying a site rent of $219.45 or $222.50.[38] The site fee background relevant to those 42 sites, where the homeowners did not object to the increase, was summarised by the Respondents in the following manner:[39]

1 (one) site is paying $219.45 per week no rent increase this year, sold to a new owner.

1 (one) site is paying $222.50 per week no increase this year, sold to new owner with no increase given this year.

15 (fifteen) sites are paying site rent of $219.45 per week no rent increase given this year.

10 (ten) sites have increased from $213.19 to $219.45 per week is an increase of $6.06 26 per week with no objection to the increase.

6 (six) sites have increased from $213.20 $219.45 per week with an increase of $6.25 per week with no objection to the increase.

7 (seven) sites of [sic] increased from $211.83 to $219.45 per week with an [sic] recent $7.62 per week with no objection to the increase.

2 (two) sites of [sic] increased from $193.74 to $219.45 per week with an increase of $25 per week with no objection to the increase.

Any increase in the CPI number during the previous site rent period

  1. [41]
    The percentage change from the corresponding quarter of previous year in the consumer price index All Groups for Brisbane to the June 2018 quarter was 1.7%.[40]

The amenity or standard of the common areas and communal facilities

  1. [42]
    The Home Owners suggested that the general upkeep of the Hazelmere Village has deteriorated. That fact was disputed by the Park Owners.
  2. [43]
    The Home Owners raised arguments about the standard of maintenance, referring to such matters as mowing and the poisoning of garden edges, within Hazelmere Village. They also raised concerns about the manner in which waste is collected from various sites. They raised concerns regarding a deterioration in the swimming pool and spa area. These allegations were rejected by the Park Owners. The Home Owners raised concerns about the state and maintenance of the Bowling Green. The Respondents said that the Bowling Green was completely rebuilt at the end of 2013 and, as mentioned above, the Park Owners have upgraded the area. The Home Owners raised concerns about the state of the entrance to Hazelmere Village and the communal areas. As part of their evidence the Home Owners included various photographs and in them produced photographs of paint peeling off cement areas, suggesting that the park is ‘uninviting for visitors and/or prospective homebuyers’. They raised concerns about the state of a flagpole at the park entry and alleged that gutters were blocked. These matters were rejected by the Park Owners.
  3. [44]
    Statements about the site amenities were contained in the Valuation Report and the Home Owners did challenge the content. In the Valuation Report, Mr Stanaway offered the following comment:[41]

Overall complex in the same general condition as at the previous market review with all facilities now well maintained and providing adequate facilities for park of this size.

Any withdrawal of a communal facility or service previously provided at the park

  1. [45]
    There was no evidence presented to the Tribunal about the withdrawal of any communal facilities or services previously provided at Hazelmere Village.

Any addition of a communal facility or service not previously provided at the park

  1. [46]
    The Park Owner provided evidence to the Tribunal about the addition of communal facilities or services not previously provided at Hazelmere Village.[42] It includes the addition of heavy duty stackable chairs, a Colourbond tin roof, two shelters at both ends of the Bowling Green, additional aluminium seats at both ends of the Bowling Green, the installation of a speed pool pump and a large volume pool chlorinator.

Any increase in the park owner’s operating costs for the park during the previous site rent period

  1. [47]
    The Home Owners did not challenge any issues in relation to the Park Owners’ operating costs for Hazelmere Village during the previous site rent period.
  2. [48]
    The Respondents did not calculate the increase (any component of it) based on any increase in operating costs for Hazelmere Village over the review period, or any increased operating costs over the previous review period.[43] The Respondents did not rely on any increase in operating costs for Hazelmere Village as justification for the increase (or any component of it) over the review period or over the previous review period.[44]

Whether the increase is fair and equitable in all the circumstances of the case

  1. [49]
    Essentially, the only argument offered to the Tribunal by the Home Owners was that the increase applicable to some of the site residents was not fair and equitable in all the circumstances. The Home Owners described their argument in these terms:

The applicants are all homeowners in Hazelmere Village which is owned by the respondent. There are currently six rent groups with varying amounts of site rent within the park. These groups have come about due to the respondent changing the site agreements over the years. All the applicants are concession cardholders and as such have a limited income. The increased rents of $25.71 and $18.09 per week out of their pension are not only excessive, but unimaginable.[45]

  1. [50]
    The Respondents provided evidence that the increase reflects the agreement between the Park Owners and the Home Owners and was calculated in accordance with the terms of the Home Owners’ site agreements.[46] That statement was not disputed by the Home Owners.
  2. [51]
    The Respondents produced evidence, in tabulated format, indicating the site rent expressed as a percentage of pension entitlements for both the single and double pensions on a fortnightly basis.[47] The comparative table indicates an increase in the percentage that is relatively modest. That is, representing an increase from 31.2% in October 2015 to 36.3% in October 2018. The calculations were not disputed by the Home Owners.
  3. [52]
    The Home Owners argued that the site rent now being claimed goes beyond the maximum that is specified for full rebate on rent assistance and the Home Owners are not receiving the same benefit that they would otherwise receive if the rent was within that full rebate range.[48]
  4. [53]
    The Park Owners argued that their claim for a site rent increase in excess of the figure determined by their expert was justified, fair and reasonable having regard to all of the factors listed in section 70(3) of the Act.

The Tribunal deliberations

  1. [54]
    The Home Owners argued that the site rent of $219.50 per fortnight sought by the Park Owners is excessive and that the Tribunal ought to exercise a discretion to reduce the amount to $206 (or lower).[49] The basis upon which that figure was considered reasonable was not explained with any precision. The Tribunal finds that the arbitrary selection of such a figure is of little assistance in supporting the arguments of the Home Owners.
  2. [55]
    The Home Owners also argued that for some residents the increase since 2012 has been significant, amounting to an increase of $77 per week, which has caused hardship and as a result some Home Owners have sold their home due to financial concerns. No specific evidence was provided to the tribunal in relation to these matters. The Tribunal gives such submission little weight given that it ignores the obvious fact that many Home Owners have elected to stay in Hazelmere Village.
  3. [56]
    The Home Owners did not address the issue as to why the rate sought by the Park Owners was acceptable to many of the homeowners in Hazelmere Village, including those who had recently acquired homes in the park and agreed to the rent sought by the Park Owners. On that basis, the Tribunal determines that the argument of the Home Owners is not logically probative.
  4. [57]
    The Park Owners relied upon the Valuation Report and suggested that the amount determined by the expert as appropriate reflects commercial reality and market forces. The Park Owners also argued that Hazelmere Village is slightly superior to Sugar Coast Village where the site rent was $211.65 and accordingly it is reasonable for the park to have a higher site rent, as claimed. The Tribunal finds that this submission has force, by reference to the facts of this case and the expert evidence.
  5. [58]
    The Park Owners acknowledge that the site rental for Hazelmere Village was higher than the site rent for Palm Lakes, but relied upon the expert evidence of Mr Stanaway that it is not an appropriate comparison, given that Palm Lakes is a relatively new park and that the site rental is subsidised by the Park Owner. The Tribunal accepts the uncontested expert evidence in this regard.
  6. [59]
    There was discrepancy in the evidence between the Park Owners and the Home Owners in relation to the state of maintenance and repair of Hazelmere Village. In that regard, the Tribunal notes the comments of the expert that the property is well maintained and finds that the level of maintenance and the services provided are reflected in the amount determined by the expert as an appropriate site rent.
  7. [60]
    The Tribunal is asked to consider what would be an appropriate rent for site rent and in coming to that decision there are many factors that the Tribunal should consider. The Tribunal does consider the amount that people coming into the park are prepared to pay by way of site rent is a fair, but not conclusive, indication of appropriate market forces and notes that the amount is equal to or exceeds the amount stated by Mr Stanaway as a fair site rent.
  8. [61]
    The Tribunal does note that one of the important objects of the Act is ‘encouraging the continued growth and viability of the residential park industry in the State’.[50] The Home Owners did not address that issue.
  9. [62]
    The Tribunal is satisfied that Mr Stanway did comply with his obligations and fulfilled his duty to assist the Tribunal, which overrides any obligation to any party to the proceedings or any person who is liable for his fee or expenses.
  10. [63]
    The Tribunal does accept the expert evidence of Mr Stanaway, which was not contradicted by a contrary expert view. At the hearing, the Home Owners did not diminish the quality of the evidence in any way through cross examination.
  11. [64]
    The Park Owners did provide detailed, quality evidence that provides an appropriate comparison between pension entitlements and site rent. The Tribunal accepts that evidence, which goes to the actual impact of the site rent on the occupants and is relevant to the issue of what is a fair and equitable site rent in the circumstances.
  12. [65]
    The Tribunal considers the expert report of Mr Stanaway provides an accurate and authoritative statement of comparisons between relevant manufactured home parks in the Hervey Bay area and it appropriately considers comparable site rents, facilities and increases in site rents over time.
  13. [66]
    The Tribunal notes that whilst there has been a considerable increase in site rent since (say 2012) the site rent claimed by the Park Owners must be reduced slightly, when all factors are considered.
  14. [67]
    The site rent claimed by the Park Owners is nearly appropriate when it is compared with rental paid elsewhere for similar parks, and when considering what people are prepared to pay when moving into this park.
  15. [68]
    The methodology to be applied by the Tribunal is different to the methodology used by a valuer when determining a fair market rent because the Tribunal must consider additional factors relating to that which is fair and equitable. However, when considering all of these matters the Tribunal has concluded that in this instance the fair market rental as determined by Mr Stanaway is appropriate and is an amount that is fair and equitable in the circumstances.
  16. [69]
    The Tribunal has formed the view that the site increase is reasonable and appropriate to the extent determined as market site rent by Mr Stanway. That is to the figure of $217.50 per week. The Tribunal rejects the arguments by the Respondents that the amount of $219.45 should be adopted. In making that assessment, the Tribunal notes that the addition of communal facility and services not previously provided in Hazelmere Village has been adequately and appropriately considered by Mr Stanaway in coming to his expert determination.
  17. [70]
    Given the expert findings, the Tribunal has formed the view that it would be inappropriate to set different site rents for those sites that are the subject of this application, notwithstanding their differing location and size.

Orders

  1. [71]
    The orders are as follows:
  1. The Tribunal reduces the amount of the increase in site rent by $1.95 per week (reducing the site rent from $219.45 per week to $217.50 per week).
  2. The decision of the Tribunal is to be delivered to the parties by email.

Footnotes

[1]  A ‘manufactured home’ is a structure, other than a caravan or tent, that has the character of a dwelling house; and is designed to be able to be moved from one position to another; and is not permanently attached to land [Manufactured Homes (Residential Parks) Act 2003 (Qld), s 10(1)].

[2]  In the context of this application, it was common ground that Hazelmere Village was a ‘residential park’. A ‘residential park’ is an area of land that includes sites; and common areas; and facilities for the personal comfort, convenience or enjoyment of persons residing in manufactured homes positioned on sites [Manufactured Homes (Residential Parks) Act 2003 (Qld), s 12].

[3]  A ‘site’ is land that is available for rent under a site agreement [Manufactured Homes (Residential Parks) Act 2003 (Qld), s 13].

[4]  A ‘home owner’ is a person who owns a manufactured home that is positioned on a site in a residential park under a site agreement [Manufactured Homes (Residential Parks) Act 2003 (Qld), s 8(1)].

[5]  A ‘site agreement’ is an agreement between a park owner and a home owner that provides for (amongst other things) the rental by the home owner of particular land in a residential park [Manufactured Homes (Residential Parks) Act 2003 (Qld), s 14].

[6]  Valuation report prepared by Mr BTR Stanaway, Certified Practising Valuer, of John Watt and Associates Valuers and Development Consultants dated 20 August 2018, 4.

[7]  Ibid, 5.

[8]Manufactured Homes (Residential Parks) Act 2003 (Qld), s 4(1).

[9]  Ibid, s 4(2)(c)(iii).

[10]  Ibid, s 4(2)(e).

[11]  Ibid, s 4(3)(a).

[12]  A ‘residential park dispute’ is (amongst other things) a  dispute between the park owner and home owner under a site agreement about the parties’ rights or obligations under the agreement or this Act; or another matter provided for under the Act Manufactured Homes (Residential Parks) Act 2003 (Qld), s 14A(c)].

[13]Manufactured Homes (Residential Parks) Act 2003 (Qld), s 70(1)(b).

[14]  Ibid, s 70(4).

[15]  Ibid, s 70(5).

[16]  Ibid, s 70(6).

[17]  Ibid, s 70(7).

[18]  Ibid, s 69(1).

[19]  Valuation Report, 3.

[20]  Ibid, 4.

[21]Manufactured Homes (Residential Parks) Act 2003 (Qld), s 70(5)(k).

[22]  Ibid, s 70(5)(l).

[23]  Valuation Report, 14.

[24]  Ibid.

[25]  First statement of Michael Claude Entriken, dated 31 July 2019, [36].

[26]  Ibid, 8.

[27]  Ibid, 9.

[28]  Ibid, 10.

[29]  Ibid.

[30]Matthews & Ors v Tamberra Pty Ltd ATF the Max Ahlfeld Family Trust t/as Sugar Coast Relocatable Estate [2014] QCAT 697.

[31]  Valuation Report, 12.

[32]  Ibid.

[33]  Ibid, 12 - 14.

[34]Nicholson v Hazelmere Village Home Park [2010] QCAT 678.

[35]M & T Entriken Pty Ltd v Nicholson and Ors (No 2) [2015] QCATA 88.

[36]  Valuation Report, 7.

[37]  Refer to the Applicants’ material D (1), being a letter from the Secretary of the Hazelmere Owners’ Committee to M and T Entriken Pty Ltd dated 5 September 2018.

[38]  Respondents’ Response filed in the Queensland Civil and Administrative Tribunal on 29 January 2019, [8].

[39]  Ibid, [9-15].

[40]  Ibid, [55].

[41]  Valuation Report, 6.

[42]  Respondents’ Response filed in the Queensland Civil and Administrative Tribunal on 29 January 2019, [60-62].

[43]  Second statement of Michael Claude Entriken, dated 2 October 2019, [6].

[44]  First statement of Michael Claude Entriken, dated 31 July 2019, [63]; Second statement of Michael Claude Entriken, dated 2 October 2019, [7].

[45]  Application filed by the Applicants in the Queensland Civil and Administrative Tribunal on 3 October 2018, 6.

[46]  Ibid, [65].

[47]  Ibid, [69].

[48]  Statement made during the oral hearing.

[49]  Ibid.

[50]Manufactured Homes (Residential Parks) Act 2003 (Qld), s 4(3)(a).

Close

Editorial Notes

  • Published Case Name:

    Priddy and Ors v M and T Entriken Pty Ltd and Anor

  • Shortened Case Name:

    Priddy and Ors v M and T Entriken Pty Ltd and Anor

  • MNC:

    [2020] QCAT 107

  • Court:

    QCAT

  • Judge(s):

    Member Milburn

  • Date:

    14 Apr 2020

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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