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Kereopa v W & T Enterprises (Qld) Pty Ltd[2017] QCAT 138

Kereopa v W & T Enterprises (Qld) Pty Ltd[2017] QCAT 138

CITATION:

Kereopa v W & T Enterprises (Qld) Pty Ltd

[2017] QCAT 138

PARTIES:

Wayne Robin Kereopa

(Applicant)

v

W & T Enterprises (Qld) Pty Ltd

(Respondent)

APPLICATION NUMBER:

OCL049-16

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

3 March 2017

HEARD AT:

Maroochydore

DECISION OF:

Member Deane

DELIVERED ON:

2 May 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. W & T Enterprises (Qld) Pty Ltd is to give Mr and Mrs Rose the documents prescribed by section 45(2) of the Manufactured Homes (Residential Parks) Act (Qld) 2003 by 4:00 pm on 19 May 2017.
  2. If Mr and Mrs Rose wish to proceed with the purchase transaction upon receipt of the documents pursuant to Order 1, Wayne Robin Kereopa is to give W & T Enterprises (Qld) Pty Ltd a written request for W & T Enterprises (Qld) Pty Ltd’s consent to the assignment of Wayne Robin Kereopa’s site agreement to Mr and Mrs Rose together with two signed copies of the form of assignment by 4:00 pm on 2 June 2017.
  3. W & T Enterprises (Qld) Pty Ltd must sign both copies of the form of assignment provided to it pursuant to Order 2 and return them to Wayne Robin Kereopa by 4:00 pm on 9 June 2017.
  4. If W & T Enterprises (Qld) Pty Ltd fails to comply with Order 3, W & T Enterprises (Qld) Pty Ltd is taken to consent to the assignment.

CATCHWORDS:

LANDLORD AND TENANT – COVENANTS – NOT TO ASSIGN OR SUBLET – LESSOR’S CONSENT – NOT TO BE UNREASONABLY WITHHELD ETC - Manufactured Homes – where home owner seeking to sell manufactured home and assign site agreement – where park owner failed to provide information to prospective buyer as required – where failure to provide information prevented prospective buyer from deciding whether to sign form of assignment – whether Tribunal’s power to order park owner to consent has arisen - whether park owner unreasonably refused to consent to assignment

Manufactured Homes (Residential Parks) Act (Qld) 2003, s 4, s 9, s 14A, s 29, s 43, s 45, s 49, s 50, s 58, s 136, s 140

Queensland Civil and Administrative Tribunal Act (Qld) 2009, s 28

Acts Interpretation Act (Qld) 1954, s 14A

W & T Enterprises (Qld) Pty Ltd v Copeland & Anor [2013] QCAT 301

Mills v Cannon Brewery Co [1920] 2 Ch 38

Boss & Anor v Hamilton Island Enterprises Limited [2008] QSC 274

Kereopa v W & T Enterprises (Qld) Pty Ltd [2005] QCCTMH 16

Wadley Properties No 1 Pty Ltd v Davis [2012] QCAT 73

APPEARANCES:

 

APPLICANT:

Wayne Robin Kereopa

RESPONDENT:

W & T Enterprises (Qld) Pty Ltd

REPRESENTATIVES:

 

APPLICANT:

represented by Ms Anne Bemi

RESPONDENT:

represented by Ms Elaine Lawson, director

REASONS FOR DECISION

  1. [1]
    Mr Kereopa lives at Alex Beach Cabins and Tourist Park at Alexandra Headlands. It is a mixed use residential park with some manufactured home sites.  W & T Enterprises is the park owner.
  2. [2]
    Mr Kereopa wishes to sell his manufactured home and assign the relevant site agreement because his health has deteriorated and he needs to go into full time care.  His only asset is his manufactured home.  The sale proceeds would assist to fund his future care.  Mr and Mrs Rose wish to purchase his home and to take an assignment of the site agreement.  Mr Kereopa claims the park owner has refused to assign the site agreement and that the park manager has attempted to interfere with the sale of his home to the Roses and to a previous prospective buyer, Ms Hanna.
  3. [3]
    There is evidence[1], which I accept, that the stress of these proceedings and prior proceedings,[2] where the park owner unsuccessfully applied to terminate Mr Kereopa’s site agreement on the grounds that it wished to use the park or part of it for another purpose, being a redevelopment,[3] has exacerbated his health issues. In the prior proceedings, the Tribunal found that there were exceptional circumstances and exercised its discretion under section 38(1) of the Act not to terminate the site agreement.
  4. [4]
    He claims that the park owner:
    1. is interfering in the sale of his home in contravention of section 58 of the Manufactured Homes (Residential Parks) Act (Qld) 2003 (the Act) and is hindering the proposed assignment in contravention of section 43 of the Act.
    2. has deliberately set about dissuading Ms Hanna, a previous prospective buyer and the Roses from purchasing his home by misleadingly stating that the development of the park land is imminent.
    3. is using the claim of intended development of the park land to obtain financial advantage.
    4. has made the claim of intended development since 2003 and has failed to carry out any act genuinely bearing on developing the park, which demonstrates a lack of credibility.
  5. [5]
    In his Application Mr Kereopa claimed that the dispute related to the assignment of his interest in the site agreement, interference with the sale of a home and unconscionable actions.  He claimed a contravention or failure to comply with section 58, section 49(3)[4] and section 96[5] of the Act.  He sought orders that the park owner:
    1. not interfere in the sale of his home;
    2. consent to the assignment of his interest in the site upon which the home is situated;
    3. pay his costs of the application.
  6. [6]
    At the hearing, Mr Kereopa sought the following orders:
    1. that the documents prescribed under section 45 of the Act be provided to the Roses;
    2. that the site agreement be assigned to the Roses upon them providing the Respondent with 2 copies of the Form 8;
    3. that a penalty as prescribed under each of section 45(2), section 43(1) and section 58(1) be imposed on the Respondent;
    4. any other orders that the Tribunal considers relevant.
  7. [7]
    During the hearing, I sought submissions from Ms Bemi, Mr Kereopa’s representative, as to the Tribunal’s particular legislative power to make such orders, upon which reliance was placed.  The Tribunal is a creature of statute and must find its power from either the Queensland Civil and Administrative Tribunal Act (Qld) 2009 (the QCAT Act) or from a relevant enabling Act, such as the Act. The Tribunal has no inherent powers.  Ms Bemi initially referred me to sections 4(2)(b) and (c) of the Act, which sets out relevant objects of the Act but do not expressly empower the Tribunal to make the orders sought. 
  8. [8]
    The main object of the Act is to regulate and promote fair trading practices 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.[6]  Most relevantly, the main object is achieved by facilitating disclosure of information about the park and the Act to prospective home owners for a site,[7] regulating the assignment of a site agreement[8] and providing ways of resolving a site agreement dispute.[9]
  9. [9]
    Much of the evidence relied upon by Mr Kereopa as to the park owner or its employee, the park manager, interfering with or hindering the sale or assignment was based upon information provided to Mr Kereopa by his daughter-in-law.  She holds his power of attorney and assisted Mr Kereopa by engaging with the real estate agent, Mr Gordon, with whom the home was listed for sale.  Much of that information was based upon conversations between Ms Kereopa and Mr Gordon with Mr Gordon reporting various matters to Ms Kereopa. 
  10. [10]
    Ms Kereopa did not give a statement in these proceedings and was not therefore available to be questioned by W & T or by me.  Mr Gordon provided a statement of evidence but was unavailable during the hearing to be questioned by W & T or by me.
  11. [11]
    Whilst the Tribunal is not bound by the strict rules of evidence, it must observe the rules of natural justice.[10] W & T relied upon evidence by Ms Lawson and by Mr Woodbury, the park manager. Both of whom gave statements and were available to be questioned by Mr Kereopa’s representative and by me. 
  12. [12]
    Where there is a conflict in that evidence, I prefer the evidence of W & T.  In this regard, in particular, I am not satisfied that the Form 7 in respect of Ms Hanna was ever provided to W & T nor that W & T required proposed buyers to attend a compulsory interview as part of the sale process.  The contracts of sale prepared by Mr Gordon, which are in evidence before me, include a special condition requiring an interview with a park owner, whose name is not W & T.[11]  It is more likely than not that Mr Gordon used as a precedent special conditions applicable to another residential park.

Penalties

  1. [13]
    Mr Kereopa claims that a penalty as prescribed under each of section 45(2), section 43(1) and section 58(1) of the Act ought to be imposed on W & T.
  2. [14]
    W & T contends, and I accept, that the Tribunal has no power to impose a penalty as prescribed under each of section 43(1), section 45(2) and section 58(1) of the Act.
  3. [15]
    Section 43(1) of the Act provides that the park owner must not hinder a proposed assignment of the seller’s interest in the site agreement.  The maximum penalty for such a contravention is 100 penalty units.  However, the park owner does not contravene this provision if the park owner reasonably refuses to consent to a proposed assignment.[12]
  4. [16]
    Section 45 of the Act provides that the seller must give the park owner notice, in the approved form, of the proposed assignment.  There is no dispute that the approved form is a Form 7 and that such a notice in respect of the proposed assignment to the Roses was provided to W & T on or about 6 July 2016.
  5. [17]
    Section 45(2) of the Act requires the park owner, within 7 days after receiving the notice, to provide the buyer with a copy of the site agreement, the disclosure documents for the park and written advice of the amount of the site rent payable by the seller when the notice was received.  The maximum penalty for a contravention of this provision is 20 penalty units. 
  6. [18]
    The disclosure documents[13] are:
    1. the home owners information document for the park, giving information to help the person make an informed decision about entering into a site agreement,[14] which provides the particular information set out in section 18 of the Act;
    2. the park rules;
    3. any proposal for a change in the park rules.
  7. [19]
    W & T does not dispute that it has not provided the required documents in the required time or at all. 
  8. [20]
    Section 58(1) of the Act provides that the park owner must not hinder the sale of a home owner’s manufactured home positioned on a site.  The maximum penalty for such a contravention is 200 penalty units.  However, the park owner does not contravene this provision if the park owner reasonably refuses to consent to a proposed assignment of the site agreement.[15]
  9. [21]
    Section 136 of the Act provides that proceedings for an offence against the Act is to be taken in a summary way under the Justices Act (Qld) 1886 and provides for when such a proceeding is required to be commencedSuch proceedings under the Justices Act are brought in the Magistrates Court not in the Tribunal. 
  10. [22]
    Accordingly, I find that I have no power to impose a penalty as prescribed under each of section 43(1), section 45(2) and section 58(1) of the Act even if I was satisfied that the offence had been made out and despite the park owner’s admission it had not complied with section 45(2) of the Act. 
  11. [23]
    It is not, therefore, necessary to consider and resolve the conflicting evidence of Mrs Rose and Mr Woodbury as to the contents of the discussion between them.  This evidence was relevant to the claimed contraventions rather than the remaining issues to be decided relating to the failure to provide the documents or whether the refusal to consent to the assignment was unreasonable.

Provision of Documents

  1. [24]
    Mr Kereopa seeks an order that the documents prescribed under section 45 of the Act be provided to the Roses.  I am satisfied that W & T should be ordered to give Mr and Mrs Rose the documents prescribed by section 45(2) of the Act.
  2. [25]
    W & T contends that the Tribunal has no relevant power in respect of the failure to provide the documents and that the only consequence is that it is potentially liable to having proceedings brought against it for an offence. [16]  As stated earlier in these reasons, W & T acknowledges it has not provided the documents within the required time or at all.  Ms Lawson contends that the only option open to Mr Kereopa is to provide a further Form 7, which will trigger a new timeframe for response by W & T.
  3. [26]
    Ms Lawson’s evidence was that:
    1. the Form 7 in respect of the Rose transaction was forwarded by the park manager in July 2016 to Peter Hooke, a director of W & T, who did not appreciate the steps or the timeframe for action required.
    2. she ordinarily deals with such matters but at the time she was on maternity leave.
  4. [27]
    Section 45 of the Act sets out an offence and the maximum penalty. It does not specifically empower the Tribunal to make orders in respect of a contravention.  However, the Tribunal has broad powers to make orders it considers appropriate to resolve a site agreement dispute.[17] 
  5. [28]
    Section 14A(1)(a) of the Act provides that a site agreement dispute is

a dispute between parties to a site agreement about the parties’ rights and obligations under the agreement or this Act.

  1. [29]
    Although a copy of the site agreement was not in evidence before me, there is no dispute that Mr Kereopa and W & T are parties to a site agreement.  It is clear that a dispute has arisen between them about W & T’s obligation under the Act to provide documents under section 45 to the Roses, a proposed buyer, following the provision by Mr Kereopa of a Form 7.  
  2. [30]
    I consider it appropriate, in order to resolve that dispute, to order the provision of the documents by W & T within a further short period of time.

Does the Tribunal have the power under Section 50 of the Act to the order the assignment?

  1. [31]
    Mr Kereopa seeks an order that the site agreement be assigned to the Roses upon providing W & T with two copies of the signed Form 8.  W & T disputes that section 50 of the Act empowers the Tribunal to make such an order.
  2. [32]
    I find that the Tribunal’s power under section 50 of the Act to order W & T to sign both copies of the form of assignment has not yet arisen because the process under section 49 of the Act has not occurred because of W & T’s failure to comply with the Act.
  3. [33]
    Mr Kereopa’s written submissions[18] handed up during the hearing relied upon section 50 of the Act.  I note that the Application did not specifically refer to section 50 of the Act.  He contends that the Tribunal’s jurisdiction under section 50 is enlivened because the park owner has advised that it does not consent and therefore the park owner has refused or is taken to have refused to consent for the purposes of section 50(1) of the Act. 
  4. [34]
    Mr Kereopa contends that:
    1. W & T’s failure to provide the required documents[19] has prevented the formal request for consent to the assignment[20] being progressed; and
    2. W & T ought not be allowed to rely upon its own wrong (i.e. its contravention of section 45) to avoid the Tribunal’s power to order the park owner to consent, where W & T has stated that it does not consent to an assignment to the Roses. 
  5. [35]
    W & T contends that the application ought to be dismissed as Mr Kereopa has failed to comply with section 49(2) of the Act by failing to give two signed copies of the Form 8 to W & T at the time the Form 7 was given to W & T.  Further, it contends that a new Form 7 ought to be delivered together with two signed Form 8 so that the process can recommence.  Ms Lawson submitted that she would ensure W & T provided the documents required by section 45 and she would ensure W & T provided written notice of its decision to refuse to consent as required by section 49(5) of the Act.
  6. [36]
    W & T says it does not consent to the assignment but if it wanted to it cannot consent to the assignment, as it has not been provided with two signed Form 8.  It points to section 48(2) of the Act which provides that

The park owner may give consent only by signing both copies of the form of assignment.

  1. [37]
    Mr Kereopa contends, and I accept, that there is a logical assumption in the Act that the prospective buyer will have received the documents required by section 45(2) of the Act, be informed by them and then if wishing to proceed with the transaction sign two copies of the approved form of assignment.[21]  There is no dispute that Form 8 is the approved form of assignment.  Forms are approved for use under the Act pursuant to section 144 of the Act. 
  2. [38]
    Form 8 contains a warning that the buyer should not proceed with the assignment if they have not received the information required in response to the Form 7.  The warning in the approved form clearly contemplates that the Form 7 will be given to the park owner prior to the Form 8 being signed.   After the Form 8 is signed by the buyer and the seller, the seller is to provide it to the park owner.[22]  This sequence is also consistent with the objects of the Act in enabling prospective home owners to make informed choices by facilitating disclosure of information.[23]
  3. [39]
    During the oral hearing, Ms Lawson conceded that the two signed Form 8 might be delivered separately from the Form 7 but submitted that tight time limits would apply because the park owner is to make a decision about the request within 14 days. 
  4. [40]
    As I understand Ms Lawson’s submission, W & T contends that the delivery of the Form 7 is to be regarded as the written request for the park owner’s consent under section 49(1) of the Act.  Section 49(2) of the Act requires two signed copies of the form of assignment to accompany the request and section 49(6) of the Act provides that the park owner is taken to have refused to consent if it fails to make a decision about the request within 14 days after its receipt.
  5. [41]
    In my view, there is nothing in section 45 of the Act, the approved Form 7 or section 49 of the Act, which supports W & T’s contention that the Form 7 is the written request for consent as referred to in section 49(1) of the Act. 
  6. [42]
    Form 7 on its face is a notice of proposed sale and assignment.  It does not request the park owner to consent to an assignment.  It requests the park owner to provide the proposed buyer with specific information.
  7. [43]
    W & T contends, and I accept, that the Tribunal’s power under section 50 of the Act to order that the park owner consent to the assignment, where the Tribunal decides that the park owner unreasonably refused to consent has not yet arisen.  I find that section 50(1) of the Act is to be construed having regard to the terms of section 49 of the Act and that this is evident from the terms of section 50(4) of the Act, which assumes that the park owner has received both signed copies of the form of assignment. 
  8. [44]
    Section 50(1) of the Act provides that

This section applies if the park owner refuses, or is taken to have refused, to consent to the assignment of the seller’s interest.

  1. [45]
    W & T contends, and I accept, that this is a reference to the process outlined in section 49 where the park owner refuses consent[24] and is taken to have refused to consent.[25]
  2. [46]
    The Tribunal’s power under section 50(2) is limited to circumstances where the section 49 process has been complied with and is limited in the orders that may be made.[26] As the seller has not yet given the park owner a written request for the park owner’s consent accompanied by 2 copies of the form of assignment signed by the seller and buyer the park owner would not be able, within 7 days after the order is made, to sign and return both copies of the form of assignment.[27] 
  3. [47]
    Currently, there is no applicable form of assignment to which section 50(5) of the Act might apply if W & T failed to sign the form of assignment as required by section 50(4) of the Act. 
  4. [48]
    W & T contends, and I accept, that this would give rise to confusion in the event the Roses sought to further assign and could not have been contemplated by the legislature.  W & T says that ordinarily a further prospective buyer would be provided with a copy of the relevant tribunal order together with a copy of the signed Form 8.   In the present circumstances, no Form 8 signed by the buyer and seller could be provided to a prospective buyer, because it does not exist. 

Does the Tribunal have the power under Section 140 of the Act to order the assignment?

  1. [49]
    I find that the preferable construction of section 50 of the Act is that it is not the sole source of the Tribunal’s power in respect of an assignment and that section 140 of the Act provides the Tribunal with broad powers to make orders to resolve the site agreement dispute between Mr Kereopa and W & T.   It would not be consistent with the objects of the Act, in particular to protect home owners from unfair business practices,[28] to construe section 50 as being the sole source of the Tribunal’s power in respect of an assignment in the current circumstances.
  2. [50]
    W & T contends that the Tribunal’s sole powers in respect of assignment are set out in section 50 of the Act.  In oral submissions, it was submitted for Mr Kereopa that the Tribunal’s more general powers to make orders in respect of a site agreement dispute[29] could be relied upon where the park owner had indicated that it would not consent to the assignment if the signed Form 8 was produced.
  3. [51]
    Section 50 sets out specific provisions governing what might be regarded as the ‘usual’ circumstances.  W & T’s failure to comply with the Act has prevented those provisions from being applicable.  In construing the provisions of the Act, it is appropriate to have regard to the objects.[30]
  4. [52]
    Earlier in these reasons, I found that a site agreement dispute between Mr Kereopa and W & T has arisen about W & T’s obligation under the Act to provide documents under section 45 to the Roses, a proposed buyer, following the provision by Mr Kereopa of a Form 7.  This dispute has prevented Mr Kereopa from submitting signed Form 8 as contemplated by section 49 of the Act should the Roses wish to proceed with the transaction upon receipt of the required documents.  
  5. [53]
    Essentially Mrs Rose’s evidence was that she and her husband wished to proceed with the purchase after the provision of the section 45 documents if they confirmed the information provided by Mr Kereopa and Mr Gordon, the real estate agent.

Has W & T unreasonably refused to consent?

  1. [54]
    I find that W & T have unreasonably refused to consent to the assignment.
  2. [55]
    W & T contends that the Tribunal ought not to find that it has unreasonably refused to consent and that the Tribunal ought not therefore order that it sign the Form 8 upon being provided with two copies.
  3. [56]
    W & T says that it does not consent to the assignment because:
    1. it has expended funds to previously apply to terminate Mr Kereopa’s site agreement but was unsuccessful because the Tribunal considered there were exceptional circumstances.  It intends to redevelop the park and will expend more time, effort and money if it is required to apply to the Tribunal to terminate the site agreement with the Roses than Mr Kereopa;
    2. based upon the evidence in the previous proceedings with Mr Kereopa and previous proceedings in respect of the park, it formed the view that any compensation payable to Mr Kereopa would be less than any compensation payable to the Roses upon a future application for termination.  W & T have previously applied to the Tribunal to terminate other site agreements, some successfully and some not successfully.[31] 
  4. [57]
    There is no legislative guidance in the Act as to what constitutes unreasonable refusal to consent.  It is a matter, which must be determined on the facts of each case.  A common contractual obligation in relation to assignments, in particular in leases, is that the lessor’s consent to assignment is not to be unreasonably withheld. The purpose of such an obligation is generally to protect the lessor from having their premises used by an undesirable person e.g. because the proposed assignee may not be capable of carrying out the terms of the agreement or from being used for an undesirable or unlawful purpose.   Withholding consent where it had the consequence of imposing a new term inconsistent with the agreement has been found to be unreasonable.[32]  Such cases give guidance as to what constitutes unreasonable refusal to consent, given the nature of the relationship between the park owner and the home owner.
  5. [58]
    There is a long history of dispute between Mr Kereopa and W & T.  In addition to the prior proceedings in which W & T applied to terminate the site agreement, Mr Kereopa’s statement[33] refers to a decision of the Commercial and Consumer Tribunal (CCT), relating to the refusal of W & T to consent to Mr Kereopa tenanting his home while he was ill and unable to occupy it.[34] In that case, the learned Member found that W & T was required to consider any applicant to tenant the home on the criteria set out in clause 3 of Appendix A of Part 4 of the relevant agreement, which he noted was the same clause which governed Mr Kereopa’s right to assign, which relevantly provided:

The occupier shall not assign, sublet or part with possession of the site or any part thereof without the prior written consent of the owner which shall not be unreasonably withheld in the case of an applicant who is able to demonstrate to the satisfaction of the owner, his responsibility, good character and credit-worthiness and who enters into an agreement in writing with the owner embodying like covenants to those of the occupier hereunder.[35]

  1. [59]
    W & T do not assert that the Roses are not responsible, of good character and credit-worthy.  There is no evidence before me that the Roses have indicated they are not willing to enter into an agreement on the same terms.
  2. [60]
    As referred to earlier in these reasons, the site agreement was not in evidence before me. There is no evidence before me about whether or not there have been any variations to the terms of the site agreement, which amend clause 3 of Appendix A of Part 4.  During the hearing, I specifically asked Ms Bemi whether Mr Kereopa relied upon any provisions of the site agreement in support of his Application and was advised he did not.
  3. [61]
    Ms Lawson’s evidence was that W & T have, on a very limited number of occasions, consented to assignment of a site agreement where W & T have not previously sought to terminate the site agreement. 
  4. [62]
    Essentially W & T’s position is that it will not consent to an assignment:
    1. where it has previously expended time, effort and money to seek to terminate the site agreement; and
    2. where in its assessment the compensation payable to an assignee on termination will be greater than that payable to Mr Kereopa.
  5. [63]
    Ms Lawson’s evidence is that:
    1. W & T is continuing to work towards a redevelopment of the site and that in order to position it to carry out a redevelopment it has made applications to terminate site agreements progressively as it is in a position to afford the relevant compensation;
    2. in 2014 changes in the Sunshine Coast Planning Scheme caused W & T to reassess the highest and best use of the land;
    3. although the town planning approval, which was in place at the time of the application to terminate Mr Kereopa’s site agreement, has lapsed it will shortly make an application to use part of the park for a farmers’ market as part of a longer term strategy to redevelop the land as a retirement/aged care facility.
  6. [64]
    W & T’s assessment is that compensation:
    1. payable to Mr Kereopa would be restricted to that available under section 40(5) of the Act, where the home owner intends disposing of the home or the home cannot be removed.  This assessment is based on evidence before the Tribunal in previous proceedings, that there are no parks in reasonably close proximity to which an existing manufactured home could be relocated and his health is such that he needs to relocate to a nearby property to access his healthcare providers and support network.  It is also based upon a view that the Tribunal will require evidence of a new site agreement with another park owner, as was required in Wadley Properties No 1 Pty Ltd v Davis[36] before ordering relocation costs under section 40(3) of the Act. 
    2. payable to the Roses would likely be ordered under section 40(3) of the Act, which would include costs in removing, transporting and positioning the home on a new site and therefore would involve a higher compensation payment and therefore consenting to an assignment would involve a detriment to W & T.
  7. [65]
    Any application to the Tribunal to terminate a site agreement under section 38(1)(f) of the Act where the park owner wishes to use the park or part of it for another purpose involves the exercise of a discretion.[37]  Such discretion is to be exercised at the time of the application and based upon the evidence then before the Tribunal. 
  8. [66]
    If the tribunal intends making a termination order under section 38(1)(f) of the Act it is required to also make a compensation order.[38]  Such an order will also depend upon the evidence before the tribunal at that time. 
  9. [67]
    In my view, it is not appropriate to pre-empt the orders that might be made. It is not, in my view, a reasonable assumption to make that:
    1. the evidence, which Mr Kereopa would provide to the Tribunal at a future time upon a future application for termination will be the same as he presented on the previous occasion; and
    2. W & T will expend more time, effort and money if it is required to apply to the Tribunal to terminate the site agreement with the Roses than Mr Kereopa.
  10. [68]
    W & T’s position is effectively that Mr Kereopa’s site agreement:
    1. is no longer capable of assignment to anyone because W & T has previously unsuccessfully attempted to terminate it; or
    2. is only capable of assignment to a buyer who agrees to limit their compensation rights to that payable under section 40(5) of the Act.
  11. [69]
    Such a position seeks to significantly alter Mr Kereopa’s rights to assign under the Act and under the site agreement, if the terms of the site agreement remain as stated in the CCT decision. 
  12. [70]
    Whilst W & T maintains that it intends to redevelop the park, I note that at the time of the hearing before me, there was no current council approval for redevelopment of the park or part of it and Ms Lawson’s evidence was that Mr Kereopa’s site would not be impacted by the farmers’ market proposal if it proceeded. 
  13. [71]
    In all of these circumstances, I find that the refusal to consent is unreasonable and that orders similar to those available under section 50 of the Act are appropriate to resolve the site agreement dispute.

Footnotes

[1] Exhibit 2, Attachment A.

[2] W & T Enterprises (Qld) Pty Ltd v Copeland & Anor [2013] QCAT 301.

[3] Manufactured Homes (Residential Parks) Act (Qld) 2003 (the Act), s 38(1)(f).

[4] Unreasonable refusal to consent.

[5] Imposes a maximum penalty of 200 penalty units for harassment or unconscionable conduct.

[6] The Act, s 4(1).

[7] Ibid, s 4(2)(b).

[8] Ibid, s 4(2)(c)(i).

[9] Ibid, s 4(2)(e).

[10] QCAT Act, s 28.

[11] Exhibit 4, attachment DG “C” and attachment DG “D”.

[12] The Act, s 43(2).

[13] Ibid, s 29(1)(a).

[14] The Act, s 9.

[15] Ibid, s 58(2).

[16] Ibid, s 136.

[17] The Act, s 140.

[18] Exhibit 10.

[19] In contravention of section 45 of the Act in response to the Form 7.

[20] As contemplated by section 49 of the Act accompanied by two signed copies of the form of assignment.

[21] The Act, s 47.

[22] Ibid, s 49(1).

[23] Ibid, s 4.

[24] The Act, s 49(5).

[25] Ibid, s 49(6).

[26] Ibid, s 50(3) and s 50(4).

[27] Ibid, s 50(4).

[28] The Act, s 4(1)(a).

[29] Ibid, s 140.

[30] Acts Interpretation Act (Qld) 1954, s 14A.

[31] W & T Enterprises (Qld) Pty Ltd v Way & Ors [2010] QCAT 318.

[32] Mills v Cannon Brewery Co [1920] 2 Ch 38; Boss & Anor v Hamilton Island Enterprises Limited [2008] QSC 274.

[33] Exhibit 2 at [9].

[34] Kereopa v W & T Enterprises (Qld) Pty Ltd [2005] QCCTMH 16. 

[35] Kereopa v W & T Enterprises (Qld) Pty Ltd [2005] QCCTMH 16 at [26].

[36] [2012] QCAT 73.

[37] W & T Enterprises (Qld) Pty Ltd v Copeland & Anor [2013] QCAT 301 at [13] – [15].

[38] The Act, s 40.

Close

Editorial Notes

  • Published Case Name:

    Wayne Robin Kereopa v W & T Enterprises (Qld) Pty Ltd

  • Shortened Case Name:

    Kereopa v W & T Enterprises (Qld) Pty Ltd

  • MNC:

    [2017] QCAT 138

  • Court:

    QCAT

  • Judge(s):

    Member Deane

  • Date:

    02 May 2017

Appeal Status

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