Harmer v PJD Group Pty Ltd[2017] QCAT 179

REASONS FOR DECISION

1. [1]
   The applicants in this matter, Julie Ann Harmer and Robert George Harmer, are a married couple and residents of the Esk Caravan Park, operated and owned by the respondent, PJD Group Pty Ltd (PJD Group).
2. [2]
   PJD Group purchased the Esk Caravan Park in 2013. It would be fair to say that it has not been smooth sailing for either party. PJD Group is operated by husband and wife team, Paul and Jackie Lawson.
3. [3]
   Mr and Mrs Harmer seek:

   1. A declaration that they are homeowners as defined by the Manufactured Homes (Residential Parks) Act 2003 (Qld) (the Act) and are entitled to receive a written site agreement from PJD Group Pty Ltd in accordance with the Act;
   2. A declaration that PJD Group cannot impose a requirement upon Mr and Mrs Harmer that their manufactured home must comply as a Class 1a dwelling prior to entry into the site agreement;
   3. An order that amounts which have been charged to Mr and Mrs Harmer for visitor fees and electricity service fees be refunded to them, or credited to their account with PJD Group; and
   4. That any application in the Tribunal that remains on foot in relation to efforts by PJD Group Pty Ltd to terminate Mr and Mrs Harmer’s tenancy, brought pursuant to the Residential Tenancies and Rooming Accommodation Act 2008 (Qld), be dismissed.
4. [4]
   In many respects, this is a legally straightforward matter. Although there has been a complex history between the parties in the Tribunal, much of the dispute has been resolved by way of a previous decision of the Tribunal in this matter, made by Member Gordon on 3 February 2016. In that decision, Member Gordon was asked to determine whether Mr and Mrs Harmer’s home, situated at Site 46 in the Esk Caravan Park, was a ‘manufactured home’ as defined in s 10(1) of the Act. In his decision, at paragraph [45] Member Gordon found that the Harmer’s home was indeed a manufactured home, and said:^[1]

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.

5. [5]
   The reason for Member Gordon saying ‘part of the dwelling’ was that he had earlier found that the Harmer’s annexe, which is not designed to be moved from one position to another is not a ‘manufactured home’. The decision made by Member Gordon has not been appealed, and the period within which it could be appealed has now expired. As such, the proceedings now before me must proceed on the basis that the Harmer’s dwelling is indeed a manufactured home. As a consequence, it is very clear that the Harmer’s are entitled to a site agreement.
6. [6]
   The basis upon which PJD Group has persisted in refusing to issue the Harmer’s with a site agreement is on the basis of a misconceived understanding that they are entitled to demand from the Harmer’s proof that their structure is a ‘Class 1a building’. No doubt, this is because they wish to continue to argue that the annexe referred to in Member Gordon’s decision is not authorised and should be removed. Given that the annexe has been in situ for many years, predating the purchase of the Esk Caravan Park by the respondents, one must wonder what the utility of arguing about the annexe is. In any event, what is clear is that the only authority that may have the legislative and regulatory authorisation to require building and/or planning approval would be the Somerset Regional Council.
7. [7]
   PJD Group owns the land upon which the Esk Caravan Park is situated. Because of this, if there are planning and/or building concerns, the Somerset Regional Council would need to take them up with the owner of the land, that being PJD Group. There is no lawful basis upon which PJD Group can usurp the role of the Somerset Regional Council and require that the Harmers have their dwelling certified.  This is particularly so where the Act includes a very clear legislative mandate requiring that manufactured home owners be issued with site agreements. There is no evidence before the Tribunal indicating that any authority with regulatory responsibility for building certification has made any demands that the dwelling be certified.  Moreover, the evidence before the Tribunal indicates that the dwelling has been in place since, at least, 2006. 
8. [8]
   It is clear that PJD Group is a park owner within the meaning of s 11 of the Act, and that Esk Caravan Park is a ‘residential park’ as defined in s 12 of the Act. The question for the Tribunal then becomes what terms should be incorporated within the site agreement. Section 25(4) of the Act requires that a written site agreement set out the standard terms, including the site rent and other charges payable, when they are to be paid, and how and when the site rent may be varied.  Section 25(5) of the Act then requires that the park owner pay the costs of preparing the agreement.
9. [9]
   Mr and Mrs Harmer submit that an agreement entered into between themselves and PJD Group on or around 27 January 2015 fulfils the definition of ‘site agreement’ contained the Act. The Tribunal accepts that Mr and Mrs Harmer have been residing on the site in their manufactured home, paying rent to PJD Group, with the ability to use communal facilities with the knowledge of PJD Group. On this basis, the 27 January 2015 agreement can be considered, save for where it is in conflict with the Act, to be a site agreement.  It is a basic principle of Australian law that citizens cannot contract out of compliance with legislation.
10. [10]
    Even if the 27 January 2015 agreement was found not be a manufactured home site agreement, it is evidence of the parties’ intentions to be bound by its terms, again save for where those terms are inconsistent with the Act. 
11. [11]
    I accept that the 27 January 2015 agreement provides for the following:

    1. Payment by the Harmers for the rental of site 46 in the park to PJD Group;
    2. Contains a description of site 46 as the place ‘where the movable dwelling is or is intended to be situated’;
    3. Describes as the ‘manufactured dwelling’ a ‘caravan’ (a legal decision having now been made by the Tribunal that it is, in fact, a manufactured home);
    4. Describes as the ‘movable dwelling park’ the Esk Caravan Park; and
    5. Provides for park rules, and refers to park rules as being those dated 17 October 2014.
12. [12]
    The Harmers seek an order that, in accordance with the Tribunal’s earlier decision in De Maid v C&K Anderson Pty Ltd,^[2] that the 27 January 2015 written agreement be incorporated into a manufactured home site agreement, save for the provisions that the Harmers say contravene the Act.
13. [13]
    The sole basis upon which PJD Group asserts that it is entitled to refuse to provide the site agreement to them appears to be on the basis of the earlier mentioned argument about building certification. Again, the Tribunal finds that there is no legal basis that would permit PJD Group to perform a quasi-regulatory role in relation to building certification.  In view of Member Gordon’s earlier decision in this matter, PJD Group must now provide the site agreement that the Harmer’s are entitled to the benefit of.
14. [14]
    The Tribunal accepts that the agreement entered into between the parties on or around 27 January 2015 satisfies the requirements of the Act, save for in relation to two issues.  These issues relate to (1) charges by PJD Group for supply of electricity; and (2) charges by PJD Group for “visitor’s fees”.

Recovery of charges for electricity

15. [15]
    The evidence before the Tribunal establishes that the Harmer’s have been paying a $12.85 service fee, fortnightly to PJD Group as an electricity service fee. The Harmers also pay for their actual electricity use. Mr and Mrs Harmer rely upon s 99A of the Act, which provides:

99A Separate charge by park owner not to be more than cost of supply for use of utility

3. (1)
   This section applies if—

1. (a)
   under a site agreement, the home owner is required to pay the park owner for the use by the home owner of a utility at the site; and

2. (b)
   the use is separately measured or metered.

3. (2)
   The park owner must not charge the home owner an amount for the use of a utility that is more than the amount charged by the relevant supply authority for the quantity of the service supplied to, or used at, the site.

Maximum penalty—20 penalty units.

16. [16]
    In view of s 99A, and in view of Member Gordon’s decision, there is no legitimate basis upon which PJD Group can assert that the $12.85 service fee should be payable by the Harmers. PJD Group’s argument appears to be premised upon the notion that the 27 January 2015 agreement, together with past practice, authorised the charge. However, one cannot contract out of legislation, and on this basis, the Tribunal finds that the Harmers should receive a refund of the electricity service fees. As at the time of hearing, the fees amounted to $1,053.70. Naturally, the Harmers will be entitled to recover any further amounts they have paid to PJD Group since the conclusion of the hearing.

Charges for overnight visitors

17. [17]
    An ongoing area of dispute between the parties is in relation to the attempts by PJD Group to charge Mr and Mrs Harmer fees in respect of any overnight visitors that may stay with them. Again, PJD Group argues that this should be permissible on the basis that the Harmers agreed to same in the earlier 27 January 2015 agreement.
18. [18]
    I do not accept the assertion by PJD Group that Mrs Harmer agreed to pay visitor’s fees.  At the hearing, Mrs Harmer explained that she was labouring under a misunderstanding about the way in which park rules can be changed under the Act, and on that basis she did not argue when her granddaughter’s overnight stay resulted in a fee.
19. [19]
    The “visitor’s fee” is problematic in that is disrupts the quiet enjoyment that a home owner is entitled to have in their own property.  While such an arrangement could readily imposed upon holiday makers, who enter the park for a short stay without the benefit of either a residential tenancy agreement or site agreement, the Harmers are entitled to quiet enjoyment as the beneficiaries of a site agreement. 
20. [20]
    The Act envisages that home owners will invite guests, and defines “guest” to mean “a person who enters the home owner’s site in a residential park, or the park’s common areas, with the home owner’s consent.” It would be an absurd result if, every time a home owner wished to have a grandchild, relative, or friend spend the night, they had to pay an additional charge to PJD Group.
21. [21]
    Section 86 of the Act enshrines the park owner’s requirement to take reasonable steps to ensure a home owner has quiet enjoyment of the home owner’s site in the park and the common areas.  PJD Group is not entitled to hamper the right of quiet enjoyment, which the Tribunal finds includes freedom to have overnight guests within their own dwellings, by imposing a fee. 
22. [22]
    The Tribunal is aware that this same issue has been raised in Both & Ors v PJD Group Pty [2016] QCAT 58. In Both, the Tribunal found that the visitor’s fees could not form part of the park rules. PJD Group has appealed the decision in Both.  Irrespective of the learned Member’s reasons for making the decision she made in Both, I consider that the visitor’s fees would impede the Harmer’s “reasonable peace, comfort or privacy” in using their own site in the park or the common areas. 
23. [23]
    To the extent that the 27 January 2015 agreement requires payment of “visitor’s fees”, the Tribunal finds those provisions to be void and in contravention of the Harmer’s entitlement to quiet enjoyment, and do not form part of the site agreement that the parties must now enter into.

Any residential tenancy application on foot is dismissed

24. [24]
    As the Manufactured Homes (Residential Parks) Act 2003 (Qld) applies here, the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) does not.
25. [25]
    For that reason, any application made by PJD Group under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) has no legal basis, and must be dismissed.^[3] The Tribunal will ask that the registry take appropriate steps to identify any such proceedings and issue orders in accordance with this decision.

Orders

1. The Tribunal declares that Julie Ann Harmer and Robert George Harmer are home owners as defined by the Manufactured Homes (Residential Parks) Act 2003 (Qld) and are entitled to receive a written site agreement from PJD Group Pty Ltd, and order PJD Group Pty Ltd to provide the agreement giving effect to the Tribunal’s orders no later than 4:00pm on 8 June 2017.
2. The Tribunal declares that PJD Group Pty Ltd cannot impose a requirement upon Julie Ann Harmer and Robert George Harmer a requirement that their manufactured home be classed as a 1a dwelling in compliance with relevant building certification provisions.
3. Any amounts that Julia Ann Harmer and Robert George Harmer have been charged for visitor fees and electricity service fees be refunded to them by PJD Group Pty Ltd, no later than 4:00pm on 8 June 2017.
4. Any proceedings commenced by PJD Group Pty Ltd pursuant to the Residential Tenancies and Rooming Accommodation Act 2008 (Qld), seeking to terminate Julie Ann Harmer and Robert George Harmer’s tenancy is dismissed.