Wain v Walter Elliott Holdings Pty Ltd t/as Palm Lake Resort Pty Ltd
[2021] QCAT 317
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- Unreported Judgment
- Wain v Walter Elliott Holdings Pty Ltd t/as Palm Lake Resort Pty Ltd[2021] QCAT 317
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Wain v Walter Elliott Holdings Pty Ltd t/as Palm Lake Resort Pty Ltd[2021] QCAT 317
Wain v Walter Elliott Holdings Pty Ltd t/as Palm Lake Resort Pty Ltd[2021] QCAT 317
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Wain & Anor v Walter Elliott Holdings Pty Ltd t/as Palm Lake Resort Pty Ltd [2021] QCAT 317 |
PARTIES: | jeanette wain raymond westcott (applicants) v walter elliott holdings pty ltd t/as palm lake resort pty ltd (respondent) |
APPLICATION NO/S: | REO004-21 |
MATTER TYPE: | Other civil dispute matters |
DELIVERED ON: | 13 September 2021 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Brown |
ORDERS: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – OTHER MATTERS – where the applicants are homeowners at a manufactured home residential park – where the respondent park owner sought to increase the rent payable – where at first instance the applicants sought the Tribunal to decide the appropriate site rent – where the learned member found that the rent increase was reasonable due to the applicants failing to provide contrary expert evidence – where the applicants had filed such evidence – whether the matter should be reopened Manufactured Homes (Residential Parks) Act 2003, s 69E, s 70A Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 136, s 138, s 139, s 140 Stanton v Electrics Downunder Pty Ltd [2019] QCAT 158 Wain & Anor v Walter Elliott Holdings Pty Ltd trading as Palm Lakes Resort Pty Ltd [2020] QCAT 175. |
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) |
REASONS FOR DECISION
The dispute and the decision of the tribunal
- [1]This is an application to reopen proceedings relating to a site rent increase at a manufactured home residential park. The applicants are the homeowners of fifteen (15) manufactured homes positioned on sites in the park. The respondent is the park owner.
- [2]In May 2019 the park owner gave to the residential park homeowners a general increase notice relating to the site rent payable by the homeowners.[1] The increased site rent was $19.06 per week. The applicants objected to the increase.[2] After an unsuccessful attempt to resolve the dispute, the applicants commenced proceedings in the tribunal. The applicants sought orders that the tribunal decide the appropriate site rent.
- [3]On 25 February 2021 the tribunal dismissed the application without providing reasons. The reasons for the decision were given on 9 March 2021 following a request by the applicants.[3]
- [4]In the reasons the learned member:
- (a)Referred to the absence of expert valuation evidence adduced by the applicants;[4]
- (b)Noted that it was open to the applicants to obtain an expert valuation report however they had chosen not to do so;[5]
- (c)Found that, in the absence of countervailing evidence, the opinions expressed in the respondent’s expert valuation report were accepted, and the methodology adopted, and conclusions reached were a reasonable basis for the market review;[6]
- (d)Did not consider that a consideration of the factors referred to at s 70(5) of the Manufactured Homes (Residential Parks) Act 2003 (Qld) supported a finding that the site rent increase was excessive;[7]
- (e)Was satisfied that the respondent’s expert valuation report reflected an appropriate increase that was fair and equitable;[8]
- (f)Dismissed the application for orders in relation to the site rent.[9]
- (a)
- [5]The applicants seek to reopen the proceedings.
Reopening a proceeding
- [6]Where a proceeding has been heard and determined by the tribunal, a party to the proceeding may apply to the tribunal for the proceeding to be reopened if the party considers a reopening ground may exist for the party.[10]
- [7]A ‘reopening ground’ means:
- (a)the party did not appear at the hearing of the proceeding and had a reasonable excuse for not attending the hearing; (the first reopening ground) or
- (b)the party would suffer a substantial injustice if the proceeding was not reopened because significant new evidence has arisen and that evidence was not reasonably available when the proceeding was first heard and decided.[11] (the second reopening ground)
- (a)
- [8]The tribunal may grant a reopening application only if the tribunal considers:
- (a)a reopening ground exists for the applicant party; and
- (b)the ground could be effectively or conveniently dealt with by reopening the proceeding under this division, whether or not an appeal under part 8 relating to the ground may also be started.[12]
- (a)
- [9]If the tribunal decides a proceeding should be reopened, the tribunal must decide the issues in the proceeding that must be heard and decided again.[13] The tribunal may:
- (a)confirm or amend the tribunal’s previous final decision in the proceeding; or
- (b)set aside the tribunal’s previous final decision in the proceeding and substitute a new decision.[14]
- (a)
The reopening application
- [10]The applicants rely upon the second reopening ground and say:
- (a)In making the decision, the learned member failed to take into consideration the expert valuation evidence that they filed in the proceedings;
- (b)The applicants were not afforded the opportunity to have their entire case considered by the tribunal;
- (c)A material reason for the final decision was the incorrect assumption that the applicants had failed to file expert evidence;
- (d)The applicants will suffer a substantial injustice if the proceeding is not reopened.
- (a)
- [11]The respondent has filed no submissions in response to the reopening application.
Consideration
- [12]In relation to the second reopening ground, the tribunal has held:
The second reopening ground refers to new evidence that ‘has arisen and that evidence was not reasonably available when the proceeding was first heard and decided.’ New evidence in the strict sense is evidence which was available at the trial or which could have, with reasonable diligence, been discovered. ‘New evidence’ in the context of the second reopening ground is evidence not reasonably available when the proceeding was first decided including evidence that has ‘arisen’ since the matter was decided. To this extent, ‘new evidence’ in the second reopening ground is, in my view, fresh evidence as described in R v Katsidis.[15]
- [13]The new evidence relied upon by the applicants is an expert valuation report by Lisa Maree Murdoch. It is necessary at this point to say something about the conduct of the proceedings below.
- [14]A I have earlier observed, the proceedings were commenced by the applicants in January 2020 after an unsuccessful attempt by the parties to resolve the dispute. The applicants subsequently made an application for the appointment, by the tribunal, of an independent registered valuer to provide a written valuation for a market review of site rent.[16] The tribunal refused the application.[17]
- [15]The tribunal made directions for the parties to file their statements of evidence.
- [16]The applicants filed a statement of evidence by the lead applicant, Ms Wain, on 10 July 2020. In her statement Ms Wain said: ‘We as pensioners cannot afford to have undertaken an independent valuation...’.
- [17]The respondent filed its statement of evidence in the form of submissions on 24 July 2020.
- [18]The applicants filed their evidence in reply, in the form of submissions, on 5 August 2020. Of singular relevance in the present application is that the submissions referred to and attached an expert valuation report by Lisa Murdoch dated 28 July 2020.
- [19]The respondent filed further submissions in response, despite no direction being made to do so, on 17 August 2020. The submissions referred, inter alia, to the report of Ms Murdoch.
- [20]For the following reasons the report by Lisa Murdoch is not new evidence:
- (a)The report was obtained by the applicants before the tribunal decided the proceeding;
- (b)The report had been filed by the applicants before the tribunal decided the proceeding.
- (a)
- [21]Accordingly, the second reopening ground is not made out.
- [22]That is not however the end of the matter.
- [23]The reasons for decision refer to the absence of any expert valuation evidence being filed by the applicants. The applicants filed such evidence. The record of the proceedings confirms this. Although there is no reopening ground available to the applicants, it does appear strongly arguable that the decision below was attended by error in the failure by the learned member to take into consideration the report of Ms Murdoch. The report certainly appears on its face to be credible. Ms Murdoch is identified in the report as an Associate of the Australian Property Institute (AAPI) and the director of Investment Property Valuations and Advisory Qld, with Jones Lang LaSalle Advisory Services Pty Limited. Ms Murdoch is, among other things, a registered valuer and a board member of the Queensland Valuers Registration Board. In the report Ms Murdoch is, inter alia, critical of the methodology adopted by the respondent’s valuer and opines that the market rent of the residential park is $188.00 per week. It should be noted that this was the amount being paid by the applicants before the increase in site rent.
- [24]It would seem at least arguable that the applicants have not been afforded procedural fairness, that is, the evidence placed by them before the tribunal was not considered with the result that the applicants were not given a reasonable opportunity to present their case. It would also seem at least arguable that the tribunal erred in failing to take into consideration relevant evidence.
- [25]In light of the foregoing, the application for reopening is more appropriately an application for leave to appeal and appeal.
- [26]I order that the application for reopening will proceed as an application for leave to appeal and appeal. The proceeding will be transferred to the appeals list to be managed by the Senior Member.
Footnotes
[1] Manufactured Homes (Residential Parks) Act 2003, s 69E (“MA Act”)
[2] Ibid, s 70(1)(b).
[3] Wain & Anor v Palm Lake Resort Pty Ltd (unreported, QCAT, Member Hughes, 9 March 2021).
[4] Reasons at [4].
[5] Ibid.
[6] Ibid at [5].
[7] Ibid at [9].
[8] Ibid.
[9] Ibid at [10].
[10] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 136, s 138(1).
[11] Ibid, schedule 3, Dictionary, (Definition “reopening ground”)
[12] Ibid, s 139(4).
[13] Ibid, s 140(1).
[14] Ibid, s 140(4).
[15] Stanton v Electrics Downunder Pty Ltd [2019] QCAT 158, at [49]
[16] MH Act, s 70A.
[17] Wain & Anor v Walter Elliott Holdings Pty Ltd trading as Palm Lakes Resort Pty Ltd [2020] QCAT 175.