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Harmer v PJD Group Pty Ltd[2016] QCAT 28

Harmer v PJD Group Pty Ltd[2016] QCAT 28

CITATION:

Harmer v PJD Group Pty Ltd trading as Esk Caravan Park [2016] QCAT 28

PARTIES:

Julie Ann Harmer and Robert George Harmer

(Applicants)

v

PJD Group Pty Ltd trading as Esk Caravan Park

(Respondent)

APPLICATION NUMBER:

OCL055-15

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Gordon

DELIVERED ON:

3 February 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. On a preliminary issue it is declared that part of the dwelling (that is, the trailer) situated at site 46 in the Esk Caravan Park is a “manufactured home” as defined in section 10(1) of the Manufactured Homes (Residential Parks) Act 2003.
  2. The application shall be listed for a directions hearing.

CATCHWORDS:

Whether dwelling was a caravan or a manufactured home – whether as originally designed it was capable of being registered for use on the road

Residential Tenancies and Rooming Accommodation Act 2008 (Qld) ss 7, 9(2), 37

Manufactured Homes (Residential Parks) Act 2003 (Qld) ss 10, 10A, 14

Transport Infrastructure (Roads) Regulation 1991 (Qld)

Traffic Regulation 1962 (Qld), Schedule 1

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

Salamon Nominees Pty Ltd  v Moneywood Pty Ltd [1998] QCA 440

Monte Carlo Caravan Park Pty Ltd v Curyer & Anor [2006] QCA 363

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

  1. [1]
    This is a preliminary issue about whether a dwelling is a caravan or a manufactured home.
  2. [2]
    The context of the preliminary issue is that Mr and Mrs Harmer own and occupy a dwelling on a site in Esk Caravan Park.  On 27 January 2015 they signed a Moveable Dwelling Tenancy Agreement (Form 18b) under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld).  On 15 July 2015 they were issued with a Form 12 Notice of Leave requiring them to leave the site by 17 September 2015.
  3. [3]
    Two weeks after receiving this notice, on 29 July 2015 Mr and Mrs Harmer applied to QCAT for a declaration that the dwelling was not in fact governed by the Residential Tenancies and Rooming Accommodation Act 2008 (‘2008 Act’), but instead was governed by the Manufactured Homes (Residential Parks) Act 2003 (Qld) (‘2003 Act’).  The grounds were that the dwelling was not a caravan, but was a manufactured home as defined.  Alternatively they sought an order setting aside the Form 12 as being retaliatory, contrary to section 291 of the 2008 Act.
  4. [4]
    Mr and Mrs Harmer did not leave the site by the date on the Notice to Leave and the site owners applied to the Tribunal for a termination order.  That application has been stayed pending determination of this matter.
  5. [5]
    The statutory definitions set out below mean that if Mr and Mrs Harmers’ home is a caravan then it cannot be a manufactured home.  If it is not a caravan, then I have to decide whether it is a manufactured home as defined by section 10(1) of the Manufactured Homes (Residential Parks) Act 2003.

The statutory definitions

  1. [6]
    “Caravan” is defined in section 7 of the Residential Tenancies and Rooming Accommodation Act 2008.  This is also the definition of caravan which is adopted in the Manufactured Homes (Residential Parks) Act 2003.[1]

7 Caravan

(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.

(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.

(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. [7]
    “Manufactured home” is defined in section 10 of the Manufactured Homes (Residential Parks) Act 2003.

10 What is a manufactured home

(1) A manufactured home is a structure, other than a caravan or tent, that—

  1. (a)
    has the character of a dwelling house; and
  1. (b)
    is designed to be able to be moved from one position to another; and
  1. (c)
    is not permanently attached to land.

(2) A manufactured home does not include a converted caravan.

(3) ..

  1. [8]
    “Converted caravan” is defined in section 10A of the 2003 Act.

10A What is a converted caravan

A converted caravan is a structure that—

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

The nature of the dwelling

  1. [9]
    This appears from the report of consulting engineers, Jeffrey Hills & Associates.[2]  The home is in two distinct parts – a trailer unit (9.8m long by 2.7m wide) and a shorter annexe (8.6m long by 2.7m wide).
  2. [10]
    The trailer was manufactured by Regal in 1992.  It is supported on a combination of double chassis and masonry blocks.  The bottom chassis is part of a trailer with a ball coupling and a triple axle.  The top chassis is made of steel sections that have been bolted onto the bottom chassis in such a way that the bolts can easily be removed and the lower trailer pulled out from under it.
  3. [11]
    The annexe has a timber framed floor and is supported by concrete masonry blocks. 
  4. [12]
    On the site, the two units are positioned side by side with their rear walls adjacent.  From the front therefore, the trailer stands just over a metre further forward than the annexe which stands to its right hand side.
  5. [13]
    The trailer is used as a kitchen, dining room, bathroom and toilet, and bedroom.  The annexe is used as a living area.
  6. [14]
    Mr Hills points out that the annexe consists of a floor, roof, front and rear wall and one side wall.  It has no fourth wall but instead uses the outside wall of the trailer as a wall.  The annexe therefore relies on trailer for its structural integrity.  Mr Hills opines that the annexe is not designed for moving from place to place and could not be moved without being dismantled. 
  7. [15]
    It is probable therefore, that the annexe was built on site once the trailer was in place. The designs for the annexe have been provided, attached to an application for Council approval.  It is clear from these plans that the annexe was a replacement for a previous one and was constructed by a builder.

Capability of registration for use on public roads

  1. [16]
    Mr Hills refers to a number of things which he says show that the trailer could not comply with the requirements for registration for use on the road or which demonstrated that the trailer was not designed for such use.
  2. [17]
    These issues are important for the third limb of section 7(1) of the Residential Tenancies and Rooming Accommodation Act 2008 which requires that, to be a caravan a trailer as originally designed must have been capable of being registered under a law of the State about the use of vehicles on public roads.
  3. [18]
    It is common ground that the trailer was built in 1992.  I need therefore to have regard to the legislation which applied to registrations of vehicles for use on the road at that time.[3]  This is the Transport Infrastructure (Roads) Regulation 1991.  This provided that a person was not permitted to use an unregistered vehicle (including a trailer) on a road unless they were a temporary visitor to the State with an authorised vehicle, or with a limited use permit or plate, or a dealer’s plate.[4]  
  4. [19]
    Registration of vehicles was carried out by the Director-General, Department of Transport and it could be refused if the vehicle was larger than permitted.[5]  Since a person was not permitted to use a vehicle (including a trailer) on a road which was larger than permitted without the prior written approval of the Director-General[6] clearly the intention was to refuse registrations for trailers which were larger than permitted.
  5. [20]
    Mr Hills refers to these compliance issues:-
    1. (a)
      A compliance plate is required given certain information required for registration.  A plate is fitted but does not contain all the information required. 
    2. (b)
      Excessive rear overhang (this is the distance between the rear end of the vehicle and the centre of the axle group).  This should not exceed the lesser of 3.7m or the front load space.  In this case the front load space was 5.4m.  The rear overhang was 4.4m and so was in excess of the limit of 3.7m.
    3. (c)
      Excessive width.  The limit is 2.5m but the trailer was measured at 2.7m.
  1. [21]
    The first of these I do not think is much assistance because presumably the compliance plate could have been made compliant fairly easily if there was a need to register the trailer as a vehicle for use on the roads.
  2. [22]
    The second of these corresponds with a requirement in clause 44B(1) of Schedule 1 of the Traffic Regulation 1962.  The trailer was therefore non-compliant with this requirement when inspected by Mr Hills and was likely to have been non-compliant when it was made.
  3. [23]
    The third of these corresponds with a requirement in clause 45(1) of that schedule.  The trailer was therefore non-compliant with this requirement when inspected by Mr Hills and was likely to have been non-compliant when it was made.
  4. [24]
    Mr Hills also states that these other things showed that the trailer could not comply with the regulations for use on a public road:-
    1. (a)
      There were no fittings for end-outline lamps (clearance lights), required for trailers of more than 2.1m wide.  There was nothing to show the fittings were originally there and have been removed.
    2. (b)
      There was no fitting for a number plate lamp and nothing to show that this was originally fitted and has been removed.
  1. [25]
    However, photographs have been submitted by the site owners which show clearance lights at the rear of the trailer, and also show a number plate light.  These photographs also show fitted tail, direction, and brake lights.  The site owners point out that the trailer has a towbar and wheels.[7]  These things certainly show that the trailer was fitted with at least some of the things required for it to be towed on a road.
  2. [26]
    Mr Hills identifies two further things which he says shows that the trailer was not designed for use on a road:-
    1. (a)
      The trailer is boxed at the front showing that there was no attempt to create an aerodynamic shape.
    2. (b)
      The trailer was fitted out internally in a way showing it was not designed for use on a road, for example with hanging lights and a dining table which was not fixed.[8]
  1. [27]
    I do not think these additional things are persuasive because the test is not whether the trailer was designed for use on a road, but rather whether it could be used as a trailer, however infrequently, and whether it could be registered for use on a road.
  2. [28]
    It is clear however that because of the excessive rear overhang and the excessive width, at the time the trailer was designed and built, it could not have been registered under the Transport Infrastructure (Roads) Regulation 1991.  It therefore does not satisfy the third limb of section 7(1) of the Residential Tenancies and Rooming Accommodation Act 2008 for the structure to be a caravan.
  3. [29]
    It is submitted by the site owners however, that since a permit to transport an oversized trailer was available, the third limb in section 7(1) is satisfied because the permit is itself a form of registration.[9]  With respect only to the Transport Infrastructure (Roads) Regulation 1991 which is the regulation with which I am concerned, I do not agree.  It is clear from the regulation that the registration regime was quite different from the permit regime. 
  4. [30]
    For one thing, “registration” in relation to a vehicle is defined in the regulation as meaning that the vehicle is recorded on the register of vehicles under regulation 4.03(2).  That provides for the allocation of a registration number for the vehicle, the issue of a certificate of registration, the issue of a registration label which must be displayed on the vehicle, and the issue of number plates which must be attached to the vehicle.  There are provisions to deal with change of details, renewal and cancellation of registration and its transfer.
  5. [31]
    The provisions about limited use permits and plates, and dealer’s plates, are not in regulation 4.03(2) and so are outside the definition of registration in the regulation. 
  6. [32]
    Secondly, the permit provisions state that they apply to authorise the use of unregistered vehicles on the road, showing that the two regimes are different. 
  7. [33]
    For these reasons, in my view obtaining a permit under the 1991 legislation was not a form of registration.
  8. [34]
    If the argument to the contrary is correct it would mean that a vehicle designed principally as a residence and designed for towing could be a “caravan” even if it were considerably oversized, provided it obtained a permit for limited use on the road.  This is clearly not the intention behind section 7(1) of the Residential Tenancies and Rooming Accommodation Act 2008.  That seeks to draw a distinction between a caravan and a manufactured home and if the third limb of section 7(1) were in practical terms to disappear, there would be little to distinguish the two.

Prior representation that the home is a caravan

  1. [35]
    The site owners rely to demonstrate their understanding that the dwelling is a caravan, on a number of documents in which it is described as a caravan.  These include the application by the previous owner of the home for Council permission to build the annexe, and the previous owner’s advertisement and sales receipt describing the home as a 1992 Regal caravan with solid annex.  These matters are not of assistance because the opinion of the previous owners is not admissible in evidence and the previous owners cannot bind Mr and Mrs Harmer.
  2. [36]
    From Mr and Mrs Harmer themselves, there is the tenancy agreement which they signed which described the home as a “caravan, annexe and small garden shed”.  It is also said that they made two previous applications to the Tribunal, and in one of these which was dated 1 June 2015, they described their home as a caravan.  It was not until 29 July 2015 that they applied to the Tribunal for a declaration that the home was not a caravan as defined.
  3. [37]
    It is not suggested that the site owners relied to their detriment upon any representation by Mr and Mrs Harmer that their home was a caravan, and there is no evidence to support any such reliance or detriment.  There is nothing to show that it would be unconscionable for Mr and Mrs Harmer now to deny that their home was a caravan.  Nor is it suggested that Mr and Mrs Harmer entered into a contract that their home was a caravan.  It is the case that they entered into a contract on the assumption that their home was a caravan (the Moveable Dwelling Tenancy Agreement), but that is a different thing.
  4. [38]
    Even if in some way these representations were capable of having some legal or equitable effect, there is a further difficulty in relying on them.  If Mr and Mrs Harmer’s home is not a caravan then it seems likely that their rights are governed by the Manufactured Homes (Residential Parks) Act 2003.  One object of that Act is to protect home owners from unfair business practices.  Such statutory rights cannot be defeated by estoppel[10] nor is there any provision in the 2003 Act which permits parties to contract out of their rights.[11]  In the circumstances any prior representations cannot affect my decision.

The “dwelling” to be considered

  1. [39]
    Since the preliminary issue which was ordered was whether the dwelling situated on the site is a manufactured home, it is necessary to consider whether the structure currently on the site as a whole should be regarded as the dwelling which falls to be considered, or whether it is appropriate to consider its component parts separately.
  2. [40]
    In this regard it was the view of the Court of Appeal in Monte Carlo Caravan Park Pty Ltd v Curyer & Anor[12] that the Manufactured Homes (Residential Parks) Act 2003 ‘does not invite a notional dismantling of the structure in question’ and that the Act operates by reference to the structure as it exists on site.  That was in the context of a structure made up of a caravan and annexe but which was one integrated residential structure.  There had been large structural openings made in the side of the caravan which rendered it non structural for towing.
  3. [41]
    This is not the situation here.  It can be seen from the photographs and from Mr Hills’ report that the trailer retains its structural integrity.  The trailer retains its axles and wheels and has a draw bar for towing purposes.  If the annexe were removed from the trailer, the trailer could be moved from one position to another.  It is the annexe which relies on the trailer for its structural integrity and not the other way round.  This is not one integrated residential structure.  This is also demonstrated by the description of the dwelling on sale by the previous owner as “caravan with solid annex”.  Instead, on my findings, this should have been “manufactured home with solid annex”.

Conclusion

  1. [42]
    The trailer’s rear overhang and width at the time of its design were too large for it to be registered for use on a public road under the State legislation at that time.  It is therefore not a caravan, nor was it ever a caravan.
  2. [43]
    Instead, the trailer having the character of a dwelling house and being designed to be moved from one position to another, and not permanently attached to land, is a manufactured home under section 10 of the Manufactured Homes (Residential Parks) Act 2003.
  3. [44]
    The annexe is not designed to be moved from one position to another and is therefore not a manufactured home. 
  4. [45]
    The answer to the preliminary issue is therefore that part of the dwelling situated at site 46 of the Esk Caravan Park is a manufactured home, namely the trailer.

Footnotes

[1]definition of “caravan” in the schedule to that Act.

[2]23 October 2015.

[3]Limbada & Ors v Ahearn & Ors [2005] QDC 164 at [24] and [27].

[4]Transport Infrastructure (Roads) Regulation 1991 (Qld), regulation 4.01.

[5]Ibid, regulation 4.07.

[6]Ibid, regulation 3.09(1), and see regulation 5.01(1) for the approval which could be given

[7]paragraph 21 of the affidavit of 3 November 2015.

[8]Paul Bridge who was dealer in this type of trailer when it was designed and built confirms that (unlike a caravan) it was manufactured with hanging lights, a free standing bed, and no dining room furniture – affidavit of 28 July 2015.

[9]This is the argument of Ron Chapman, Chief Executive Officer of Caravanning Queensland in his letter of 7 August 2015, adopted by the caravan park.  It is supported by a letter dated 6 November 1998 from the Residential Tenancies Authority stating that “The Authority has been advised that ‘registered for use on the road’ means any type of registration, such as permanent or year to year registration, or restricted registration such as a permit to tow it from one place to another”.  

[10]Salamon Nominees Pty Ltd  v. Moneywood Pty Ltd [1998] QCA 440 at [48] (reversed on appeal on another ground).

[11]indeed any such contract would be void: section 23 Manufactured Homes (Residential Parks) Act 2003 (Qld).

[12][2006] QCA 363.

Close

Editorial Notes

  • Published Case Name:

    Julie Ann Harmer and Robert George Harmer v PJD Group Pty Ltd trading as Esk Caravan Park

  • Shortened Case Name:

    Harmer v PJD Group Pty Ltd

  • MNC:

    [2016] QCAT 28

  • Court:

    QCAT

  • Judge(s):

    Member Gordon

  • Date:

    03 Feb 2016

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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