Reimer v Brighton Bayside Caravan Park
[2025] QCA 6
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- Unreported Judgment
- Appeal Determined (QCA)
- Reimer v Brighton Bayside Caravan Park[2025] QCA 6
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Reimer v Brighton Bayside Caravan Park[2025] QCA 6
Reimer v Brighton Bayside Caravan Park[2025] QCA 6
SUPREME COURT OF QUEENSLAND
CITATION: | Reimer v Brighton Bayside Caravan Park [2025] QCA 6 |
PARTIES: | AARON REIMER (applicant) v BRIGHTON BAYSIDE CARAVAN PARK ABN 49 092 669 919 (respondent) |
FILE NO/S: | Appeal No 11632 of 2024 QCATA No 175 of 2024 |
DIVISION: | Court of Appeal |
PROCEEDING: | Application for Leave Queensland Civil and Administrative Tribunal Act |
ORIGINATING COURT: | Queensland Civil and Administrative Appeal Tribunal at Brisbane – [2024] QCATA 90 (A/Senior Member Lember) |
DELIVERED ON: | 7 February 2025 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 21 November 2024 |
JUDGES: | Bond and Flanagan and Brown JJA |
ORDERS: |
|
CATCHWORDS: | PROCEDURE – INFERIOR COURTS – QUEENSLAND – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the applicant resided in a modified caravan in the caravan park operated by the respondent pursuant to a tenancy agreement under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) – where the Queensland Civil and Administrative Tribunal made orders terminating the tenancy agreement – where the applicant’s dwelling was removed from the site and destroyed – where the applicant applied to the Appeal Tribunal for orders, among other things, seeking leave to appeal the decision of the tribunal below – where the Appeal Tribunal refused all relief sought – whether there is a “final decision” which can be appealed to the Court of Appeal – whether there was an arguable case that the applicant’s former residence was a “manufactured home” within the meaning of the Manufactured Homes (Residential Parks) Act 2003 (Qld) Manufactured Homes (Residential Parks) Act 2003 (Qld), s 10, s 10A Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 150 Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 293, s 297 Allen v Queensland Building and Construction Commission [2024] QCA 24, considered Chandra v Queensland Building and Construction Commission [2014] QCA 335, considered Monte Carlo Caravan Park Pty Ltd v Curyer [2007] 2 Qd R 57; [2006] QCA 363, considered |
COUNSEL: | The applicant appeared on his own behalf M J Doyle for the respondent |
SOLICITORS: | The applicant appeared on his own behalf HopgoodGanim Lawyers for the respondent |
- [1]BOND JA: I agree with the reasons for judgment of Brown JA and the orders proposed by her Honour.
- [2]FLANAGAN JA: I agree with Brown JA.
- [3]BROWN JA: This application arises out of proceedings in the Queensland Civil and Administrative Tribunal (QCAT). The applicant seeks leave to appeal from a decision of the QCAT Appeal Tribunal (QCATAT) of 22 August 2024 which:
- refused an application to stay an earlier QCAT decision;
- refused an application for an extension of time to file an appeal or application for leave to appeal; and
- dismissed the appeal or application for leave to appeal.
Background
- [4]By way of background, the applicant resided in a modified caravan in the caravan park operated by the respondent. The characterisation of the applicant’s dwelling as a “caravan” and the question of whether the applicant was leasing the site or renting a caravan is contentious. The applicant and respondent had entered into a Form 8B “Moveable dwelling tenancy agreement” dated 22 April 2020 (Tenancy Agreement). On 6 May 2022, the respondent filed an “Application for minor civil dispute – residential tenancy dispute” in QCAT which sought orders terminating the Tenancy Agreement and for a warrant of possession under ss 293 and 297 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRA Act).
- [5]On 27 May 2022, QCAT, through an Adjudicator, made orders terminating the Tenancy Agreement from midnight 14 June 2022 and for a warrant for possession of the site to be issued to take effect on 15 June 2022.
- [6]The orders have long been effected. The warrant for possession was executed on 20 June 2022. On 11 July 2023, the applicant’s dwelling was removed from the site and no longer exists.
- [7]On 14 June 2024 the applicant filed applications with QCATAT seeking:
- a stay of the decision of 27 May 2022 with respect to enforcement;
- an extension of time to file an application for leave to appeal; and
- leave to appeal against the QCAT’s decision.
- [8]The QCATAT refused all relief sought by the applicant on 22 August 2024 and delivered reasons on 28 August 2024.
Nature of application
- [9]Pursuant to s 150(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), a person may appeal to the Court of Appeal against a decision of the appeal tribunal to refuse an application for leave to appeal to the appeal tribunal. Section 150(2) provides that a party may appeal a costs-amount decision and a final decision. Section 150(3) provides that an appeal under either subsection can only be made on a question of law and only if the party has obtained the court’s leave to appeal.
- [10]Section 150(2) does not apply because none of the orders made are appeallable decisions as they are not final decisions in the sense that they do not “finally decide the matters the subject of the proceeding”.[1]
- [11]The application for leave to appeal to QCATAT required an extension of time in order for it to be made. Order 2 refused the application to extend time to file the application for leave to appeal or appeal. Notwithstanding that refusal, Order 3 provided “Therefore the application for leave to appeal or appeal is dismissed”. Given that no extension of time was granted, and Order 3 was therefore unnecessary, there is an issue as to whether Order 3 was legally ineffective given there was no appeal to dismiss. Accordingly, there is a real issue as to whether s 150(1) applies.
- [12]In Chandra v Queensland Building and Construction Commission, this Court found that, notwithstanding the fact that no extension of time had been given, the fact of making an order dismissing the application for leave to appeal or appeal by a Senior Member was sufficient to provide an applicant a right to apply for leave to appeal to this Court from that order on a question of law, albeit that the decision arose out of the refusal to grant an extension of time.[2] This Court is not asked to revisit that decision. Given the conclusions I have reached below, it is unnecessary to consider Chandra for the purposes of this decision and I will proceed on the basis that the applicant has a right to apply for leave to appeal under s 150(1) of the QCAT Act without deciding that issue. The circumstances of this case are, however, otherwise quite different from that case.
- [13]In Allen v Queensland Building and Construction Commission, this Court recently discussed the relevant principles applicable to the granting of leave to appeal under s 150 of the QCAT Act.[3] As to the requirement under s 150(3)(a) that the appeal be only on a question of law, appeals from QCATAT must be confined to only pure questions of law. The Court has no jurisdiction to consider an appeal on a question of fact or on a mixed question of fact and law.
- [14]If a question of law is the subject of the proposed appeal, the Court must still determine whether to grant leave to appeal. While this Court has an unfettered discretion as to the granting of leave, an applicant will generally be required to establish that:[4]
- there is a reasonable argument that there is an error of law to be corrected; or
- leave is necessary to correct a substantial injustice, or an important point of principle sufficient to warrant the grant of leave has been identified.
- [15]In the present case, the application for leave must be refused because the questions sought to be made the subject of the proposed appeal are not confined to errors of law.
Appeal grounds as to the characterisation of the applicant’s dwelling
- [16]Grounds 1, 4, 5, 6 and 7 in the proposed notice of appeal[5] raise whether QCATAT should have found that there was an arguable case that the applicant’s former residence was a “manufactured home” within the meaning of the Manufactured Homes (Residential Parks) Act 2003 (Qld) (MHRP Act) and that he had owned the dwelling and leased the site, rather than rented a caravan.
- [17]Section 10 of the MHRP Act provides:
“10What is a manufactured home
- 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.
- A manufactured home does not include a converted caravan.
- However, if a park owner and the owner of a converted caravan enter into an agreement, that would be a site agreement if it related to a manufactured home, for a site on which the converted caravan is positioned or intended to be positioned—
- the converted caravan is taken to be a manufactured home; and
- the agreement is taken to be a site agreement...”
- [18]The applicant contends that his dwelling fell within the scope of that definition of “manufactured home” and that his occupancy of the site at the respondent’s caravan park should have been governed by the MHRP Act, not the RTRA Act, the latter being the basis upon which the QCAT adjudicator made the original orders. In support of his argument, the applicant relies on the reference to “moveable dwelling” in item 6.2 of the “Moveable dwelling tenancy agreement” and the Bill of Sale, which showed he owned the dwelling in question.
- [19]The applicant also sought to rely on advice from Caxton Legal Centre which suggested that the applicant’s residence was not a “caravan” or “converted caravan” because its length exceeded 2.5m and therefore, at the time of its manufacture, it would not have been capable of being registered as a caravan under the applicable regulations. That advice post-dates the primary QCAT decision. It provides an indication of an argument that may have been available to the applicant, but is of little assistance to the applicant. It was not a matter to which QCATAT was directed in submissions and therefore cannot form the basis of an error in the decision made because it was not considered. In any event, whether the advice properly characterised the dwelling was dependant on factual matters including the length of the dwelling.
- [20]The applicant conceded in the hearing before this Court that he did not clearly advance the argument that the MHRP Act was the applicable legislation at the initial hearing before QCAT due to difficulties he was experiencing at the time.
- [21]QCATAT found that there was no identified reasonably arguable error in the decision or process of QCAT hearing when orders were made under the RTRA Act. That conclusion is born out given it was not clearly raised before QCAT.
- [22]Whether the applicant’s dwelling was governed by the MHRP Act or RTRA Act turned on the question of whether the dwelling could be properly characterised as a “caravan” or “converted caravan”,[6] which are expressly excluded from the definition of “manufactured home” in s 10 of the MHRP Act. The respondent pointed to the fact that the Tenancy Agreement at item 6 and the Bill of Sale between the applicant and respondent also referred to the dwelling as a “caravan with carport”, which it contends meant it was a “converted caravan” and that if that characterisation was correct, then the tenancy agreement was properly a moveable dwelling tenancy agreement. This was said by the respondent to have led to an assumption of fact at first instance that the RTRA Act applied to the tenancy agreement. The applicant however contends that if that was the case s 10(3) of the MHRP Act would apply. That would require, however, a determination that the dwelling was a “converted caravan”.
- [23]The question of whether the dwelling was a manufactured home, caravan or converted caravan depends on factual matters. Even if the dwelling was not a “caravan” or “converted caravan”, the question as to which Act applied depends on further factual matters outlined in s 10 of the MHRP Act. That was made clear in Monte Carlo Caravan Park Pty Ltd v Curyer, where Keane JA considered the nature of the factual inquiry in s 10 of the MHRP Act.[7] His Honour noted that “[i]t is clear from the language of the statute that the MHRP Act operates by reference to the structure as it exists on site when the effect of the legislation falls to be considered” (his Honour’s emphasis replicated).[8] His Honour further considered that the definition in s 10 called for an “objective appraisal of the construction and function of the structure”.[9] Whether the MHRP Act or RTRA Act applied is therefore dependant on factual findings in circumstances where no factual findings were made. Without factual findings, whether or not the dwelling in question was a manufactured home or otherwise cannot be determined. Unfortunately given the destruction of the dwelling that is in any event impossible. The matters raised by the applicant are not solely questions of law.
- [24]Given the issues raised by the applicant involve mixed questions of law and fact, they are not bases upon which leave to appeal to this Court can be granted.
Appeal grounds as to the conduct of the respondent during proceedings
- [25]In oral submissions, the applicant stated that what he really wanted was a determination that the Tenancy Agreement was not a residential tenancy agreement to which the RTRA Act applied. I will therefore only touch briefly on the other matters raised by him in his other proposed grounds of appeal.
- [26]As to proposed grounds 1, 2 and 3, they allege that the respondent adopted inconsistent positions at different stages of the proceeding, apparently stating to QCAT that the applicant was renting a “caravan” and then to QCATAT that the applicant was renting a “site”. The applicant also contends that the respondent made misrepresentations to QCAT about the Tenancy Agreement insofar as it claimed he was renting a caravan when he contends he was leasing a site and owned a manufactured home. They raise matters of credit.
- [27]The applicant also contends that the QCATAT decision-maker erred in not finding that the appeal would serve a public interest insofar as matters about the respondent’s conduct would have been considered.
- [28]None of these matters were raised in seeking leave to appeal before QCATAT and the subject of its decision. They cannot therefore be the subject of any question of law which could be the subject of this appeal. They do not in any event raise matters confined to questions of law. Matters of credit are not matters of law. As to the alleged inappropriate conduct of the respondent, the failure to make factual findings is not an error of law, particularly in circumstances where the decision-maker found there was enough evidence to find the Tenancy Agreement should be terminated without having to make individual findings against either the applicant or respondent.
- [29]The applicant further complains that the application for extension of time was wrongly refused by QCATAT. The applicant did provide some explanation as to the delay in applying for leave to appeal, being the undue hardship he has suffered in the period up until filing the application to appeal before QCATAT. He seeks to raise some further matters before this Court by way of explanation. In effect, he complains that QCATAT should have reached a different decision. No error of law is identified by the applicant. The delay was significant, with the application for an extension of time to apply for leave to appeal being some two years after the decision of QCAT was made and almost a year after the dwelling was destroyed. The matters raised by the applicant by way of explanation, as well as the period of delay and the inability for QCATAT to grant some of the relief sought were considered by QCATAT. There is no identifiable legal error in the exercise of discretion by QCATAT in finding that the applicant hadn’t provided a sufficient basis to constitute a reasonable excuse for the delayed filing of the application, and that it was not in the interests of justice to allow the extension of time.
- [30]The applicant has not identified any question of law in his proposed grounds of appeal. While it is appreciated that the applicant has been through a tumultuous few years, this Court has no jurisdiction to hear the proposed appeal for the reasons set out above. It is therefore unnecessary to consider whether leave would otherwise be granted in the exercise of the Court’s discretion. I should, however, observe that the majority of relief sought by the applicant in terms of damages and the annulment of an order that the applicant cannot visit his mother at the park is not relief which it would, in any event, be open for this Court on appeal to grant. No such remedies were sought from QCAT by the applicant.
- [31]I would therefore order that the application for leave to appeal should be refused. Submissions as to costs of no more than three pages should be provided by each party within 21 days of the publication of these reasons.
Footnotes
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) sch 3 (definition of ‘final decision’).
[2][2014] QCA 335.
[3][2024] QCA 24 at [15]-[24] per Mullins P and Bond JA and Williams J.
[4]See Allen v Queensland Building and Construction Commission [2024] QCA 24 at [21], citing Crime and Corruption Commission v Andersen [2021] QCA 22 at [14] per Sofronoff P and Mullins and Bond JJA.
[5]The applicant erroneously filed a notice of appeal in lieu of an application for leave to appeal. This was not challenged by the respondent at the hearing.
[6]See MHRP Act s 10A.
[7][2007] 2 Qd R 57, where Jerrard and Holmes JJA (as her Honour then was) agreed with Keane JA.
[8][2007] 2 Qd R 57 at 59 [14].
[9][2007] 2 Qd R 57 at 60 [15].