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Both v PJD Group Pty Ltd[2016] QCAT 58

Both v PJD Group Pty Ltd[2016] QCAT 58

CITATION:

Both & Ors v PJD Group Pty Ltd t/as Esk Caravan Park [2016] QCAT 58

PARTIES:

Allan Both

Jennifer Both

David Gilmore

Alison Gilmore

Kevin Goldsworthy

Ann Goldsworthy

Douglas Green

Gayle Green

Pamela Paxman

Allan Paxman

Peter Raine

Christine Joy Raine

Jan Rouw

Ineke Rouw

(Applicants)

 

v

 

PJD Group Pty Ltd t/as Esk Caravan Park

(Respondent)

APPLICATION NUMBER:

OCL015-15

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Howard

DELIVERED ON:

17 May 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. (i) It is declared that the park owner is unable in or through park rules to impose charges on the homeowners which are not provided for in the written and signed site agreements;
  1. (ii)
    It is declared that the proposed changes to the park rules which are contained in paragraphs 4(h), 17(c), 17(e) and 23(a) of the proposed park rules are unreasonable and void.

CATCHWORDS:

MANUFACTURED HOMES - PARK RULES - whether proposed changes to park rules are reasonable - where park owner proposes to include rules which provide for charges for parking of a second vehicle, day visitors use of park facilities and overnight visitors – where charges not contained in the written site agreement - whether charges allowed to form part of park rules

Acts Interpretation Act 1954 (Qld), s 14A

Manufactured Homes (Residential Parks) Act 2003 (Qld), s 4, s 12, s 16, s 17, s 19, s 23, s 25, s 26, s 27, s 29, s 68, s 69, s 70, s 71, s 77, s 78, s 79, s 80, s 81, s 82, s 83, s 85

Claremont Holdings Pty Ltd v Chief Executive of Housing & Public Works; Chief Executive of Housing & Public Works v Claremont Holdings Pty Ltd [2015] QSC 349

Gilmore & Ors v Lawson [2014] QCAT 620

Haraba Pty Ltd v Castles [2007] QCA 206

APPEARANCES:

APPLICANT: 

The Applicants represented themselves.

RESPONDENT:

PJD Group Pty Ltd was represented by its directors, Paul & Jacqui Lawson.

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]
    These proceedings concern a dispute between the named homeowners in a manufactured home park (‘the homeowners’) and PJD Group Pty Ltd t/as Esk Caravan Park (‘PJD’ or ‘the park owner’) under the Manufactured Homes (Residential Parks) Act 2003 (Qld) (‘MHRPA’).
  2. [2]
    PJD Group purchased the Esk Caravan Park in 2013. The Esk Caravan Park contains 14 manufactured homes, 27 tenants under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (‘RTA’) and 90 powered and unpowered sites, as well as cabins for casual and holiday letting. The park owner describes it as a ‘mixed use park’. This is not a term recognised by the MHRPA, although similar arrangements may exist in some other parks.[1]
  3. [3]
    A previous decision of the Tribunal arose out of an earlier version of what was essentially the same dispute. The decision of the Tribunal in those related proceedings is published as Gilmore & Ors v Lawson [2014] QCAT 620 (the first decision). In that earlier proceeding, the Tribunal made a declaration that any amount charged for visitors and any amount charged for extra parking did not comply with ss 78 - 81(which provide the procedure which a park owner must follow when proposing to change park rules) of the MHRPA and were therefore void and of no effect.[2] In these reasons, I will refer to the events leading up to the first decision as the first rule change process.
  4. [4]
    The first rule change process included proposed park rules as follows:

Rule 4(h) One vehicle per site unless otherwise arranged. Extra vehicles incur costs.

Rule 17(c) There is no fee for day visitors to your home. Day visitors must however pay to use park facilities.

Rule 17(e) A visitor’s fee is charged for all overnight visitors. Overnight visitors must register and pay before 6pm on the night of intended stay.

  1. [5]
    Subsequent to the Tribunal’s first decision, the park owners gave notice of their intention to also vary park rules by inserting additional new park rules,[3] including proposed Clause 23(a) (the second rule change process) as follows:

Rule 23(a) Costs and fees referred to in this document are displayed in the Office and on the Manufactured Homeowners / Residents Notice Board located in the small Camp Kitchen Area. Increases to listed fees will be no more than yearly and consistent with the conditions set out in the Act for general rent rises.

  1. [6]
    In summary, the essence of the dispute is whether the park owners can make ‘park rules’ requiring the homeowners to pay charges, which are set out in a separate Price List. The particular charges in contention relate to charges for parking vehicles in excess of one vehicle on a site; charging a fee for overnight guests to the homeowners homes; and charging a fee for their day visitors to use park facilities. There were other park rule changes proposed, but no objection is/was made by the homeowners about those other changes (in either this proceeding or the earlier proceeding). Accordingly, I have not considered them.
  2. [7]
    The homeowners seek orders from the Tribunal declaring the proposed changes to the park rules set out above to be unreasonable pursuant to s 85 and void pursuant to s 23 of the MHRPA. Further, the homeowners seek a declaration that the park owner is not able to charge fees as part of the park rules and an order confirming that the decision of the Tribunal is effective across all manufactured homeowners in the Esk Caravan Park. The park owner opposes the application, arguing that it is reasonable to make the changes and impose the charges/fees as intended.
  3. [8]
    Homeowners, Douglas & Gayle Green and Kevin & Ann Goldsworthy, applied for preliminary orders that they have site agreements and are entitled to be parties. Orders were made that they be joined as parties, but declarations were not made about whether they have site agreements. Subsequently, Mr and Mrs Goldsworthy located a copy of a signed site agreement dated 18 May 2007.[4]

The legislative scheme established by the MHRPA

  1. [9]
    The main object of the MHRPA is to regulate and promote fair practices in the operation of residential parks. This is to protect homeowners from unfair business practices and enable homeowners and prospective homeowners to make informed choices consequent upon full knowledge of their rights and responsibilities in their relationship with park owners.[5] The object is to be achieved by the MHRPA, by means including, declaring some rights and obligations of park owners and homeowners,[6] and regulating the variation of site rent.[7]
  2. [10]
    A residential park includes the sites, the common areas and facilities for the homeowners.[8]  The park rules for a residential park are taken to be included as terms of the site agreement,[9] as are homeowners responsibilities[10] and the park owner’s responsibilities.[11] Contracting out of the provisions of the MHRPA is prohibited and an agreement is void to the extent which it purports to do so: s 23 of MHRPA.
  3. [11]
    The park owner is obliged to ensure a site agreement is written to the extent, and in the way required by s 25 of the MHRPA: s 25(1). The agreement must include the standard terms, and any special terms of the agreement.[12] For a standard term to be effective, if the term requires stated information to be included, the agreement is taken to include the standard term only if the information is properly included: s 25(3). Section 25(4) provides for matters which must be complied with /specified in a site agreement. Those matters specified in 25(4) must be in an agreement which is signed by the parties: s 25(4)(k). The matters in s 25(4) include the site rent and other charges payable under the site agreement,[13] as well as how and when site rent may be varied.[14] The site agreement must also state the maximum number of persons who may reside on the site.[15]
  4. [12]
    A homeowner’s right under the site agreement to the site continues until the agreement is terminated:[16]prima facie, site agreements are for an indefinite term.[17] A successor in title of the park owner under a site agreement obtains the benefits, but is subject to the obligations of the park owner in relation to the agreement.[18]
  5. [13]
    Site rent[19] payable under a site agreement may only be varied as set out in Part 11 of the MHRPA.[20] In particular, if a site agreement provides for any increase in site rent payable, and sets out how it is to be calculated, if the park owner wishes to increase the site rent the park owner must give the homeowner a notice setting out the amount of the increased site rent, how it has been calculated, and the day the increased site rent is first payable.[21] The park owner must also inform the homeowner that if the homeowner considers the increase is excessive, the homeowner has 28 days after receiving the notice in which they can apply to the Tribunal for an order reducing the amount or setting aside the increase.[22] The homeowner may then apply and the Tribunal will determine the application.[23]
  6. [14]
    If the park owner wishes to increase the rent and s 69 does not apply to the proposed increase, then a park owner must follow a different process (if it proposes to increase the rent to cover significant increased operational costs; unforeseen significant repair costs or significant facility upgrades).[24] If the park owner and the homeowner cannot agree on the proposed increase, the park owner may apply to the Tribunal about the proposed increase.[25]
  7. [15]
    Where site agreements are in force, a park owner may make rules about the use, enjoyment, control and management of the park.[26]  Rules may only be made about certain matters, as prescribed in s 77(2) as follows:

(2) However, rules may be made only about—

(a) the use and operation of the communal facilities; and

(b) the making and abatement of noise; and

(c) the carrying on of sporting and other recreational activities; and

(d) the speed limits for motor vehicles; and

(e) the parking of motor vehicles; and

(f) the disposal of refuse; and

(g) the keeping of pets; and

(h) other things prescribed under a regulation.[27]

  1. [16]
    If a park owner proposes to change a park rule, it must fix a day for objections and give notice to each homeowner at least 28 days before the objection closing day.[28] If the minimum number of homeowners object, a park liaison committee must be established to consider all objections.[29]
  2. [17]
    If a non-resolution notice is given to objectors, or the park owner or a homeowner is dissatisfied with the decision of the park liaison committee, they may apply to the Tribunal for an order declaring the proposal to be reasonable or unreasonable.[30] In deciding such an application, the Tribunal may declare the proposal to be reasonable, or declare it to be unreasonable.[31] Alternatively, it may change the proposal in a way the Tribunal considers appropriate to make it reasonable,[32] or it may make any other order the Tribunal considers appropriate.[33] The QCAT Act also provides that the Tribunal may make a declaration about a matter in a proceeding, in addition to other orders it may make under an enabling Act.[34]
  3. [18]
    For deciding the application, the Tribunal may have regard to the factors set out in s 83(2), but it may have regard to any other matters.[35] A change of a park rule has no effect if it is made otherwise than under Division 2 of Part 13 of the MHRPA, or the park liaison committee or the Tribunal in considering the proposal declares it to be unreasonable.
  4. [19]
    It is useful to observe that an agreement under the provisions of the RTA affords less protection than those given to a homeowner with a site agreement under the MHRPA.[36]

The background to the application

  1. [20]
    Except for Mr & Mrs Green, all of the applicant homeowners have lived in the residential park since between about 2007 to 2012,[37] that is, before 2013, when the current park owner purchased it.
  2. [21]
    Each of the site agreements provided to the Tribunal includes a clause in Section 5 ’Number of persons included in the site rent’. In the case of each of the homeowners who are parties, ‘2’ or 2 adults is inserted in the relevant place on the standard form site agreement. There is, in Section 5, also provision for ‘Charges for additional persons’. The agreements have differing amounts inserted in the relevant place. Most have $50 inserted. One has $70. Another has been left blank. The homeowners understood that this additional weekly fee covered a situation where another person or persons (in addition to the 2 persons allowed for in the site agreement) resided in their home on a semi-permanent basis. Most of the agreements record in Section 10, that site rent increases are to be in accordance with CPI and rate increases if applicable; one says ‘rates and fees’ as negotiable; another is blank.
  3. [22]
    The homeowners say they understood from the former park owner that overnight fees for park visitors did not apply to (short-term) visiting family or overnight guests of homeowners under the MHRPA and did not charge a fee in those circumstances. The homeowners say that in the past, neither have they been charged for family members to stay or visit at the park on an infrequent basis for facilities use. Until now, at least some homeowners have  had two vehicles with no additional charge. Some homeowners have built carports to house their two vehicles. They say essentially that since the current park owners purchased the park, it has attempted to impose rules and fees contrary to their site agreements and the MHRPA.
  4. [23]
    The park owner sought in the first rule change process to change the park rules by notice given by letter dated 15 July 2014, attaching the ‘updated’ park rules. A document attached to the park owner’s representatives affidavit, Attachment 6, sets out the changes proposed by the park owner in the first rule change process.[38] The park owner says that park rules 4(h) (parking charges for extra vehicle) and 17(e) (overnight visitor’s charge) were already contained in the park rules which have existed for over 17 years.[39]
  5. [24]
    As discussed earlier the Tribunal found that the procedure under the MHRPA for changing park rules had not been followed. The charges for visitors and parking were declared to have no effect.
  6. [25]
    In the second rule change process, the park owner notified homeowners of proposed changes to park rules by way of letter dated 23 December 2014, including rule 23(a): it is Attachment 7 to the park owners affidavit.[40] The proposed park rules were again attached. Objections were made by homeowners. A park liaison committee was formed, but ultimately a non-resolution notice was given.
  7. [26]
    It is worth noting, (because it reveals what appears to be the genesis of this dispute), that the park owners representatives say:

Esk Caravan Park is not a Manufactured Home Park it is a mixed use caravan park…[41]

We are a mixed-use park that accommodates permanent residents under the MHRPA and RTA as well as tourists who holiday within our establishment. At regular periods throughout the year the park can accommodate up to 300 guests. As a mixed-use park, business control mechanisms (such as overnight fees) manage the number of guests within the park at any one time. The application seeks to remove all fees currently imposed on overnight visitors. This has the potential for significant loss and strain on our mixed-use park business. We submit that a fee imposed, for cost recovery and management must be allowed for the health of this business (permanent residence (sic) and tourists alike).[42]

  1. [27]
    In effect, they argue that the fees they seek to impose ‘are consistent across all areas of our park.’[43] They say it is common practice for mixed-use parks to charge overnight fees and day fees for visitors. They attach email and other information from other parks.[44] Further, they say the fee is imposed on the visitor and not the ‘resident’ so the residents’ budgets are not placed under undue stress.[45]

What version of ‘park rules’ are applicable to the homeowners under the MHRPA?

  1. [28]
    As the Tribunal discussed in its earlier decision, there are a variety of inconsistent versions of the ‘park rules.’
  2. [29]
    Various versions were provided to the Tribunal by the park owner.[46] None of them are dated. Mr William Steele owned the Esk Caravan Park from 1998 to 2006. He provided a declaration[47] attaching a copy of a sign setting out park rules, which was attached to the amenities block in the park in 1998 when he purchased it. He further says that a ‘Notice’ sign, affirming park rules, was installed outside the park office by him in 2002. A copy of that ‘Notice’ is also attached to his declaration. The Notice sign refers to charges/fees for visitors and vehicles of $2.20 and $8.80 respectively. Both signs remain in place. There is another version of park rules on the back of rent receipts.[48] There is one further version of the park rules (Attachment 5).[49]
  3. [30]
    Relying on these details, the park owner says that rules 4(h) and 17(e) have been in place for over 17 years and were in place prior to the MHRPA and their entry into the park, and cannot now be objected to under the MHRPA.[50] 
  4. [31]
    Finally, the proposed amended park rules from the first and second rule change processes are contained in Attachments 6 and 7 respectively. A copy of the Price List setting out the charges was also filed.[51]
  5. [32]
    It is clear that Mr Steel did not enter into site agreements with any of the applicant homeowners. Indeed, it is not clear when the (then) park owner took the decision to include a manufactured home residential park within the Esk Caravan Park. The MHRPA is applicable only to the homeowners under the MHRPA, not other persons renting under the RTA or holidaying campers and caravanners staying at Esk Caravan Park from time to time.
  6. [33]
    The current park owner’s representatives depose that ‘prices have risen since the implementation of the first manufactured home in 2008…’[52] They therefore concede that the residential park under the MHRPA was established by 2008. However, Mr & Mrs Goldsworthy entered into a site agreement in 2007. Therefore, it seems more probable than not that at some time in 2007, the decision was taken to include a residential park[53] within the meaning of the MHRPA, within the Esk Caravan Park. I find that it was established in 2007.
  7. [34]
    On the evidence before it, the Tribunal in its first decision considered that reading them all of the versions of the park rules, it was reasonable to infer an expectation that the park owner could charge an amount for overnight visitors and an amount for parking.[54] It considered that charging actual amounts was a proposed change to park rules and the procedure in the MHRPA to change park rules had not been followed. Accordingly, it did not ultimately declare the relevant proposed changes to be reasonable or unreasonable. It declared the proposed changes void and of no effect for non-compliance with the procedure in ss 78-81 of the MHRPA.
  8. [35]
    I do not agree with the Tribunal’s conclusion that it is reasonable to infer from the different versions of the park rules that the park owner could charge an amount for overnight visitors and ‘extra’ parking. I consider that the first step is to determine which version of the ‘park rules’ applies to the homeowners under the MHRPA.
  9. [36]
    In Attachment 5, which the park owner says was in place at the time it purchased the park, the following clauses are contained:

2. Park facilities are for the enjoyment of all occupiers and their overnight visitors….A Park resident must accompany day visitors when using the Park facilities.

7. Cars are to be parked either within your carport or in the designated car parks situated throughout the park (Maximum of 2 vehicles per site unless otherwise approved).[55]

  1. [37]
    The homeowners say the former park owner did not consider that all of the so-called ‘park rules’ applied to MHRPA residents, as opposed to residents under other kinds of arrangements. Indeed would be highly improbable, given the specific requirements of the legislative scheme in the MHRPA, that all ‘park rules’ in place many years before the MHPRA began, (in some cases, before 1998), would comply with that Act and be suitable for application to MHRPA homeowners, (as well as, RTA tenants and casuals).
  2. [38]
    A person employed in the office of the park since 2010 deposes that in her ‘time working at the Esk Caravan Park’, ‘any visitors staying overnight’ have been required to pay fees, including permanent resident’s visitors.[56] The statement made is somewhat vague. It is not clear whether she means that at all times during her employment, all overnight visitors have been charged fees. It is also not clear that she is referring to visitors of homeowners under the MHRPA or to RTA residents or both. I give it limited weight because of its vagueness, and prefer the homeowners’ assertions. However, even if I accepted (and I make no finding that overnight visitors of the homeowners were charged fees) that fees have been charged in the past, it does not mean they were, in fact, applicable.
  3. [39]
    The current park owner does not appear to have considered whether ‘park rules’ appearing on the myriad of signs and documents are ‘park rules’ for the purposes of the MHRPA, or whether that term, as it is used in some of the versions, was used in a more general way by persons who owned the caravan park, well before it became a residential park for the purposes of the MHRPA.
  4. [40]
    A park owner is obliged to give a prospective homeowner, under the MHRPA, documents including the park rules and 2 copies of the proposed site agreement.[57] The park owner’s representatives allege that when they purchased the park, most ‘resident’s’ contracts were ‘non-existent, incorrect or incomplete.[58] The homeowners say that all but 3 (of the 14 manufactured homes homeowners) had agreements, and that most of them recall being provided with the ‘original version’ of the park rules.[59] That is, they were provided with the version which is described above as Attachment 5. They say that the copies of park rules on the rear of the rent receipt, the sign outside the office and on the amenities block apply to occupants of temporary/holiday residents.
  5. [41]
    It is hardly surprising that not all homeowners recall precisely what documents they were given: it occurred a number of years ago. However, most do recall. On the balance of probabilities, I accept the homeowners’ evidence, and find that they received a copy of the park rules at Attachment 5 from the park owner with their proposed site agreements in compliance with the MHRPA. Accordingly, it is reasonable to infer that the (former) park owner, having decided to establish a residential park under the MHRPA did prepare park rules intended to apply to homeowners within the residential park under the MHRPA in accordance with requirements of that Act. They are contained in Attachment 5. However, the park continued to operate the other aspects of its business, and the general ‘park rules’ under which it operated those other aspects of its business also remained in place for its other residents and customers.  
  6. [42]
    Attachment 5 contains, therefore, the whole of the existing park rules under the MHRPA which applied to the homeowners before the first rule change process began. It is reasonable to infer from rule 7 in Attachment 5 that site agreements entitle homeowners to two vehicles per site, and I draw that inference.
  7. [43]
    The Tribunal’s first decision was directed only to the particular changes to park rules agitated by the homeowners relating to the charging of fees. The many other proposed park rule changes were not in dispute in that proceeding. However, the proper process was not followed in relation to the other proposed changes and the first rule change process was not effective to make the various other changes to the park rules either. However, those other changes have now been effected in compliance with the MHRPA in the second rule change process, except in relation to those particular changes which are the subject of this proceeding. (That said, I make the observation that if any of those other purported changes which are not challenged in this proceeding fall within s 23 of the MHRPA, they are void in any event, even though the homeowners have not objected to them.)
  8. [44]
    Therefore, proposed rules 23(a), 4(h), 17(c) and 17(e), are all proposed changed rules in the second rule change process, despite the park owners submissions to the contrary. It follows that the park rules, as they apply to homeowners under the MHRPA, do not currently entitle the park owner to charge for parking for a second motor vehicle; for overnight visitors at their homes (as opposed to additional persons residing with them on a long-term basis); or for daily use of park facilities by their visitors.

Are the proposed changes to the park rules which are the subject of the dispute in compliance with s 77 of the MHRPA?

  1. [45]
    The park owner submits that the inclusion of rule 23(a) in the park rules ensures that they meet their obligations under the MHRPA, because it ensures that homeowners are fully aware of their responsibilities, by advising where fees are listed.[60] Fees were previously listed only in the office, but are now placed on the residents’ noticeboard as well. Further, they argue that in accordance with proposed rule 23(a), ‘any rises to the listed fees must be consistent with the conditions set out in the act (sic) for general rent rises thus ensuring all residents have the right to object to any rise they think is excessive.’[61] The precise mechanisms by which they assert the charges/fee rises are to be calculated or may be challenged are not particularised. It is not apparent which ‘act’ they refer to, given that some residents fall under the RTA not the MHRPA.
  2. [46]
    The park owners argue that the provision in site agreements for charges for additional persons ‘simply means that any additional person who stays overnight is not covered by the weekly site rent.’[62] They argue that the amount charged for additional persons (now $11 per adult and $8 per child per night, with a 7th free night) is ‘reflective’ of the amounts for additional persons specified in the site agreements[63] (and an additional person fee on an unpowered camp site).[64] They argue that these amounts were agreed to by homeowners when entering the park.
  3. [47]
    Section 77 entitles a park owner to make park rules about the use, enjoyment, control and management of the park, only about specified issues. These include the use and operation of communal facilities[65] and parking of motor vehicles.[66] None of these authorises the making of park rules about charging of fees.
  4. [48]
    As discussed earlier, s 25 of the MHRPA requires that a written site agreement must set out the standard terms. Section 25(4) details the matters which must appear in the written agreement that must be signed by the parties.[67] These include that it must state ‘the site rent and other charges payable under the agreement[68] and how and when site rent may be varied.[69] Although park rules are taken to be included as terms of a site agreement under s 19,[70] that part of the site agreement setting out the standard terms (including rent and other charges specific to the agreement) must be signed by the parties (as required by s 25(4)). The site agreement will be taken to include a standard term only if the information is properly included: s 25(3). The site rent and other charges must be set out in the signed agreement.
  5. [49]
    As I interpret the legislative scheme, s 77 does not provide for the charging of fees, because all charges must be set out in the signed portion of the written site agreement. The charges cannot be contained in park rules, or in this case, in another document, the Price List, which is merely referred to in the proposed park rules and subject to change at the discretion of the park owner.
  6. [50]
    Despite the park owners assertion that the charges they propose will only be increased in line with rent increases and that they can therefore be challenged, there is no mechanism in the site agreements, or the MHRPA, for the challenge asserted to exist. Variations to site rent may be challenged as provided for in Part 11. Matters to be taken into account are set out in detail. Proposed changes to park rules may be challenged as provided for in Part 13. None of the matters specified for consideration relates to determining the reasonableness of additional charges sought to be imposed in or through park rules.[71] This is because charges/fees which are not specified in the site agreements, cannot be imposed through the park rules. If it was otherwise, a park owner could at any stage introduce new charges on homeowners through park rules. To allow this to occur would be inconsistent with the legislative scheme.
  7. [51]
    Unlike an RTA tenancy, the homeowner under the MHRPA often expends very significant monies purchasing their home for placement on the site which is the subject of a site agreement. Entry into a site agreement gives them an indefinite term. Having regard to the objects of the MHRPA of protecting homeowners from unfair business practices and facilitating disclosure of information about a residential park to prospective homeowners, on my reading of the relevant provisions in the MHRPA scheme, Parliament’s intention was to ensure that homeowners could make a fully informed decision (in full knowledge of the rent and other charges applicable to them and the mechanisms for increase) about whether to enter into a site agreement.[72] All rent and charges must be set out in the s 25(4) part of the site agreement. They can not be imposed in or through park rules.
  8. [52]
    Accordingly, none of the proposed changes to the park rules which are challenged by the homeowners in this proceeding can be made in respect of homeowners under the MHRPA.
  9. [53]
    I declare that charges may not be included in or through park rules. Further, I declare that the proposed changes are unreasonable under s 83 of the MHRPA and void. I make the observation that even if the homeowners had not specifically objected to the proposed changes to the park rules, by virtue of s 23 of the MHRPA they would be void.
  10. [54]
    My decision and orders have no effect on the status of the proposed park rules as concerned persons other than homeowners under the MHRPA.
  11. [55]
    I make orders accordingly.

Observations

  1. [56]
    If I am wrong about the version of park rules which applied to the homeowners before this second rule change process, I make the observation that if any park rules applied which purported to impose charges for parking a second vehicle and the homeowners’ visitors then I would have declared them void pursuant to s 23.
  2. [57]
    If I am wrong about whether the charges can be implemented and charged through the park rules, I would in any event declare that the charges for a second motor vehicle are unreasonable against homeowners under the MHRPA. To date, they have been entitled to have 2 vehicles under their site agreements, some have expended considerable funds to build double carports. Homeowners parking entitlements under site agreements cannot reasonably be unilaterally reduced through park rules.
  3. [58]
    Further, homeowners often invest very significant funds into construction and maintenance of manufactured homes. They are not caravans. The decision to enter a manufactured home park is made for the long-term, not unlike a decision to enter a retirement village. Their site and the premises they construct in the residential park is their home. I would not consider the unilateral actions of a park owner to seek to impose additional charges for their visitors to use park facilities and visit overnight in their home to be reasonable.
  4. [59]
    The park owner suggests that other mixed-use parks charge fees of the nature they seek to impose. However, it is not apparent from the information from or about any of the parks they rely upon, contain a residential park for the purposes of the MHRPA. Therefore, I would consider the information about their charges unhelpful, even if it was relevant.

Footnotes

[1]For example, see Haraba Pty Ltd v Castles [2007] QCA 206.

[2]Gilmore & Ors v Lawson [2014] QCAT 620.

[3]An additional proposed rule 17(l) was also included but is not the subject of this application by the homeowners as it has been abandoned by the park owner.

[4]Attachment to a joint statement by Mr and Mrs Goldsworthy filed on 2 September 2015.

[5]MHRPA, s 4(1).

[6]Ibid, s 4(2)(a).

[7]Ibid, s 4(2)(c)(iii).

[8]Ibid, s 12.

[9]Ibid, s 19(c).

[10]Ibid, ss 19(a) and 16.

[11]Ibid, ss 19(b) and 17.

[12]Ibid, s 25(2).

[13]Ibid, s 25(4)(i)(i).

[14]MHRPA, s 25(4)(i)(iii).

[15]Ibid, s 25(4)(j).

[16]Ibid, s 26.

[17] Haraba Pty Ltd v Castle [2007] QCA 206, see paras [2] – [3].

[18]MHRPA, s 27.

[19]MHRPA, Schedule, Dictionary ‘site rent’ means the rent payable under a site agreement.

[20]Ibid, s 68.

[21]Ibid, s 69.

[22]Ibid, s 69(3).

[23]Ibid, s 70.

[24]Ibid, s 71, especially s 71(1)(c).

[25]Ibid, s 71(8).

[26]Ibid, s 77(1).

[27]None have been prescribed.

[28]MHRPA, s 78.

[29]Ibid, ss 80 and 81.Relevantly in a park of 14 sites, at least 5 homeowners must object.

[30]Ibid, s 82(1) and (2).

[31]Ibid, s 83(1)(a) and (b).

[32]Ibid, s 83(1)(c).

[33]Ibid, s 83(1(d).

[34]QCAT Act, s 60.

[35]MHRPA, s 83(3).

[36] Claremont Holdings Pty Ltd v Chief Executive of Housing & Public Works; Chief Executive of Housing & Public Works v Claremont Holdings Pty Ltd [2015] QSC 349.

[37]Application filed on 4 March 2015, attached are copies of the site agreements executed by the homeowners (except the Goldsworthys and the Greens). The Goldsworthys’ agreement is attached to their joint statement filed 2 September 2015.

[38]Affidavit of Paul Lawson and Jaqueline Lawson filed 22 October 2015, Part D-Introduction/History e) to m) and Attachment 6.

[39]Ibid, para [18] and attachment 9, statutory declaration of William Steele.

[40]Ibid, Part D-Introduction/History e) to m) and Attachment 7.

[41]Affidavit of Paul Lawson and Jaqueline Lawson filed 22 October 2015, para [63].

[42]Affidavit of Paul Lawson and Jaqueline Lawson filed 16 November 2015, para [69].

[43]Affidavit of Paul Lawson and Jaqueline Lawson filed 22 October 2015, para [44].

[44]Ibid, Conclusion page 14, para 3) and attachments 18, 19, 23, 20.

[45]Ibid, Conclusion page 14, para 5).

[46]Ibid, Part D-Introduction/History d) and Attachments 2, 3, 4 and 5.

[47]Ibid, Attachment 9.

[48]Ibid, Attachment 2.

[49]Ibid, Attachment 5.

[50]Ibid, para [34].

[51]Affidavit of Paul Lawson and Jaqueline Lawson filed 22 October 2015, Attachment 15.

[52]Ibid, paras [44] and [50].

[53]MHRPA, s 12.

[54] Gilmore & Ors v Lawson [2014] QCAT 620, at [16].

[55]Affidavit of Paul Lawson and Jaqueline Lawson filed 22 October 2015, Part D-Introduction/History d) and Attachment 5.

[56]Affidavit of Paul Lawson and Jaqueline Lawson filed 22 October 2015, Attachment 8.

[57]MHRPA, s 29.

[58]Affidavit of Paul Lawson and Jaqueline Lawson filed 22 October 2015, Part D-Introduction/History c).

[59]The homeowners joint witness statement filed on 6 November 2015, para [3].

[60]Affidavit of Paul Lawson and Jaqueline Lawson filed 22 October 2015, para [3].

[61]Affidavit of Paul Lawson and Jaqueline Lawson filed 22 October 2015, para [50].

[62]Ibid, para [17].

[63]Ibid, para [50].

[64]Ibid, para [50].

[65]MHRPA, s 77(2)(a).

[66]Ibid, s 77(2)(e).

[67]Ibid, s 25(4)(k).

[68]Ibid, s 25(4)(i)(i).

[69]Ibid, s 25(4)(i)(iii).

[70]Ibid, s 19(c).

[71]MHRPA, s 83(3).

[72] Acts Interpretation Act 1954 (Qld), s 14A provides that an interpretation of a provision in an Act which best achieves its purpose is to be preferred to other interpretation/s.

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Editorial Notes

  • Published Case Name:

    Allan Both, Jennifer Both, David Gilmore, Alison Gilmore, Kevin Goldsworthy, Ann Goldsworthy, Douglas Green, Gayle Green, Pamela Paxman, Allan Paxman, Peter Raine, Christine Joy Raine, Jan Rouw and Ineke Rouw v PJD Group Pty Ltd t/as Esk Caravan Park

  • Shortened Case Name:

    Both v PJD Group Pty Ltd

  • MNC:

    [2016] QCAT 58

  • Court:

    QCAT

  • Judge(s):

    Member Howard

  • Date:

    17 May 2016

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