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  4. Pereira v Palm Lake Resort Pty Ltd - [2022] QCAT 75

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Pereira v Palm Lake Resort Pty Ltd[2022] QCAT 75

Pereira v Palm Lake Resort Pty Ltd[2022] QCAT 75

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Pereira v Palm Lake Resort Pty Ltd [2022] QCAT 75

PARTIES:

Leonel da silva pereira

(applicant)

v

Palm lake resort pty ltd

(respondent)

APPLICATION NO/S:

OCL042-21

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

4 March 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Deane

ORDERS:

  1. The part of the application, which claims a rent reduction and declarations for breach of the Manufactured Homes (Residential Parks) Act 2003 (Qld), which relies upon a withdrawal of or change in the operations of the bistro, which occurred on or before 31 July 2019, is dismissed.
  2. The application is listed for a Directions Hearing on a date and time to be advised.

CATCHWORDS:

PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – JURISDICTION – GENERALLY – whether all or part of dispute has been resolved by earlier mediation agreement – whether Tribunal has power to hear and determine – whether accord and satisfaction – whether abuse of process 

Manufactured Homes (Residential Parks) Act 2003 (Qld), s 14A, s 70, s 108, s 115, s 116

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47

Michelle Boyes & Anor v Graham Maddisson & Anor [2021] QCAT 423

O'Neill v Proland Assets Pty Ltd t/a Freedom Pools & Spas [2011] QCAT 81

APPEARANCES &

REPRESENTATION:

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]
    Mr Pereira is a homeowner at a manufactured home residential park owned by Palm Lake Resort Pty Ltd (the Park Owner). 
  2. [2]
    Mr Pereira seeks orders:[1]
    1. (a)
      pursuant to section 70(3) of Manufactured Homes (Residential Parks) Act 2003 (Qld) (the Act) to invalidate the market site rent assessment undertaken in September 2019;
    2. (b)
      pursuant to section 70(4)(b) to set aside the rent increase of $47.97/fortnight;[2]
    3. (c)
      pursuant to section 70(4)(h) of the Act for a rent reduction to $255/fortnight;[3]
    4. (d)
      a declaration that the Park Owner has breached s 70(1)(b), s 70(3), s 70(4)(b),  s 70(5)(g), s 70(5)(h), s 72(1)(a), s 72(1)(b), s 72(1)(c), s 72(1)(c)(i), s 72(1)(c)(ii), s 78(1)(a), s 78(1)(b), s 78(2)(a).
  3. [3]
    He relies upon three primary grounds, which I summarise below:
    1. (a)
      The market site rent assessment is false.  Mr Pereira claims the increased rent set out in the market site rent assessment relies upon anticipated construction works, including a bistro, which he says had not been carried out as promised (Ground 1).
    2. (b)
      The market site rent assessment is negligent in its assessment of communal facilities as appearing to have been well maintained and presented in a good manner.  Mr Pereira disputes this in relation to the gymnasium facilities.  Further he disputes the site plan in the report and says the report contains pictures of facilities, including security fences, which do not exist (Ground 2).
    3. (c)
      Facilities or services which were advertised or described in a document before the site agreement was signed have been withdrawn allowing a rent reduction pursuant to section 72 of the Act.  Mr Pereira contends that the advertising of the bistro was a key factor in his decision to enter into the site agreement.  He says the bistro and the change to the bistro’s operations and Foxtel services are advertised services, which have been withdrawn. (Ground 3).
  4. [4]
    Mr Pereira also contends that the valuer was not independent or impartial.
  5. [5]
    The Park Owner says that the Tribunal has no jurisdiction to hear this dispute as the dispute was resolved by mediation agreement and that the application should be dismissed.  It says that although the dispute was resolved by agreement rather than tribunal order the principles of res judicata and estoppel should still be applied to ensure the same matters cannot be pursued by the same parties.
  6. [6]
    The Tribunal directed that the preliminary issue concerning whether the Tribunal has jurisdiction to hear some or all of this application be determined on the papers and directed submissions be filed and served.[4]  Submissions have been filed.[5]   I now proceed to decide whether the application ought to be dismissed for want of jurisdiction.
  7. [7]
    If the Tribunal considers a proceeding or a part of a proceeding is frivolous, vexatious or misconceived or lacking in substance or is otherwise an abuse of process the Tribunal may order the proceeding or part be dismissed or struck out.[6]
  8. [8]
    The Act provides that a party to a residential park dispute may apply to the tribunal for an order to resolve the dispute.[7]  Residential park dispute is defined to include a dispute between a park owner and homeowner under a site agreement about the parties’ rights or obligations under the agreement or the Act.[8] 
  9. [9]
    The right to apply is subject to requirements set out in section 116 of the Act. 
  10. [10]
    Relevantly, the requirements are that an application may be made only if the dispute has been referred for mediation under section 108 of the Act[9] and one of the following applies:[10]
    1. (i)
      the parties to the dispute cannot reach a mediation agreement;
    2. (ii)
      a party to the dispute does not attend, or withdraws from, the mediation conference for the dispute;
    3. (iii)
      the dispute is not settled within 4 months after the dispute is referred for mediation;
    4. (iv)
      the parties reach a mediation agreement and the party making the application claims the other party has not complied with the agreement –
  1. (A)
    within the time stated in the agreement; or
  2. (B)
    if no time is stated, within 2 months after the agreement is signed.
  1. [11]
    There is no dispute that Mr Pereira made referral to mediation under s 108 of the Act and the registrar allocated the file number, OCL113-20.  In February 2021, a mediation was convened, which was unsuccessful.  Mr Pereira then filed this application.  The pre-proceeding mediation pathway to the Tribunal’s jurisdiction has been engaged.
  2. [12]
    The Park Owner points to Mr Pereira previously having applied for mediation of a residential park dispute.[11]  The registrar allocated the file number, OCL034-19, to that dispute.  A mediation occurred on 30 July 2019, which resulted in a Mediation Agreement.[12]  It stated that its terms were confidential and that it ‘is in full and final resolution of the dispute’.  The dispute is clearly a reference to the claims made by Mr Pereira set out in the mediation application.  The Park Owner says that the dispute as to the withdrawal of the bistro service has been resolved by mediation and therefore the Tribunal has no jurisdiction as there is no continuing dispute.
  3. [13]
    Mr Pereira says that the earlier dispute has been resolved and that this dispute involves different broader issues. 
  4. [14]
    Such a Mediation Agreement is a contract and is binding.[13]  Any rights to orders sought in OCL034-19 are extinguished and are replaced by the rights set out in the Mediation Agreement. This concept in legal terms is referred to as ‘accord and satisfaction’. 
  5. [15]
    The Tribunal has previously considered whether a proceeding is an abuse of process and should be dismissed:[14]

[11] In Walton v Gardiner Mason CJ, Deane and Dawson JJ said at page 392:

“... Proceedings ... should be stayed as an abuse of process if, notwithstanding that the circumstances did not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has formerly been disposed of by earlier proceedings.”

[12] While the minor civil proceedings (now BDL391-10) has the same subject matter – the pool – and the same complaint – that the water level is uneven – as the previous proceedings and, therefore, the settlement agreement, it is not correct to say that the proceedings are precisely the same. Freedom’s rectification work pursuant to the settlement agreement created a new set of facts from which a new cause of action might arise.

[13] What is otherwise “frivolous or vexatious” has been usefully summarised by Judge Rackemann in Collier & Collier v Brisbane City Council & anor; Sexton & Sexton v Brisbane City Council & anor:

a) the words should be given their ordinary meaning, unfettered by their meaning in the very different context of striking out or staying proceedings for an abuse of process;

b) the ordinary meaning of the expressions include “of little or no weight, worth or importance”; “not worthy of serious notice”; “characterised by lack of seriousness or sense”; “causing vexation”; “vexing”; “annoying”;

c) a party needs to show something more than a lack of success;

d) assistance may be gained from the description of the term “vexatious” as meaning to cause “serious and unjustified trouble and harassment”. (references omitted)

Is the claim in this proceeding, or part of it, the same as that compromised in OCL034-19?

  1. [16]
    I find that part, but not all, of this proceeding is the same as that compromised in OCL034-19. 
  2. [17]
    The Park Owner attached a copy of the mediation application in OCL034-19 to its submissions.[15] Mr Pereira claimed:
    1. (a)
      Communal service/facility that was previously provided at the park has been withdrawn;
    2. (b)
      Contravention of s 17(a)(i), s 17(b), s 17(f), s 86, s 95, s 96, s 104(1), s 104(2) and s 107(2) of the Act;
  3. [18]
    He sought orders that his site rent be reduced pursuant to section 72(2) of the Act and sought compensation for damages and property value loss.  The reasons why the orders were sought were:

That the park owner withdrawn [sic] facilities and services disregarding regulations and obligations described in [the Act]

The park owner [sic] misleading and fraudulent conduct proposed new building to relocate the communal facilities and services.  Promise withdrawn

  1. [19]
    The claimed withdrawn facility related to the bistro, its closure, re-opening at the community hall for reduced hours and the limitation this created on the use of the hall for other purposes.  Mr Pereira claimed representations in relation to the bistro facility were key factors in making his decision to enter into the site agreement.  This is a factor repeated in Ground 3 of the current proceedings.  Further, he claimed that he had been overcharged rent since March 2017 due to the withdrawal of the bistro facility and suffered other loss including financial loss due to the bistro facility not being available.
  2. [20]
    The Mediation Agreement resolved Mr Pereira’s claim to a rent reduction and damages based on the reasons for claim set out in OCL034-19.  Neither party is entitled to dispute or re-litigate those matters or seek to dispute the agreed rent reduction or the period from which it was agreed to apply. 
  3. [21]
    Mr Pereira’s claim in the current proceedings for a rent reduction to $255/fortnight relies in part upon the withdrawal of or change in operations of the bistro.  It also relies upon withdrawal of Foxtel services.  Mr Pereira seeks declarations that the Park Owner has breached sections of the Act relying upon the withdrawal of or change in operations of the bistro. 
  4. [22]
    I find that to the extent Mr Pereira seeks to rely in these proceedings upon a withdrawal of or change in the operations of the bistro, which occurred on or before 31 July 2019, the date of the Mediation Agreement, to claim rent reduction or declarations for breach of the Act, he is not entitled to do so as he has compromised those claims.     
  5. [23]
    Since the Mediation Agreement was signed a market rent assessment was conducted.   The market rent assessment created a new set of facts from which a new cause of action arguably arose.  Mr Pereira is entitled to challenge the general site increase in accordance with the Act but is not entitled to do so in a way inconsistent with the Mediation Agreement.

Should the proceeding or part of it be dismissed?

  1. [24]
    I find that the Tribunal arguably has jurisdiction to hear and determine part, but not all, of the proceeding. 
  2. [25]
    As part of the claim has clearly previously been compromised by the Mediation Agreement, I find that it is an abuse of process for Mr Pereira to rely in these proceedings upon a withdrawal of or change in the operations of the bistro, which occurred on or before 31 July 2019:
    1. (a)
      to claim a rent reduction; or
    2. (b)
      to seek declarations for breach of the Act.
  3. [26]
    Those parts of Mr Pereira’s claim are dismissed.
  4. [27]
    The Tribunal arguably has jurisdiction to hear and determine Mr Pereira’s other claims provided he does so in a way consistent with the Mediation Agreement.

Footnotes

[1]  Application filed 23 June 2021.

[2]  Mr Pereira says his rent was to increase from $302.03 to $350 per fortnight as a consequence of the market site rent assessment.

[3]  The Act does not contain s 70(4)(h).  This may be a reference to s 70(5)(h).

[4]  Directions made 24 November 2021.

[5]  Park Owner’s submissions filed 17 December 2021.  Mr Pereira’s submissions filed 14 January 2022.

[6]  QCAT Act, s 47.

[7]  The Act, s 115.

[8]  Ibid, s 14A.

[9]  Ibid, s 116(3)(a).

[10]  Ibid, s 116(3)(b).

[11]  Ibid, s 108.

[12]  Park Owner’s submissions filed 17 December 2021, Appendix B.

[13] Michelle Boyes & Anor v Graham Maddisson & Anor [2021] QCAT 423.

[14] O'Neill v Proland Assets Pty Ltd t/a Freedom Pools & Spas [2011] QCAT 81, [11]-[13].

[15]  Park Owner’s submissions filed 17 December 2021, Appendix A.

Close

Editorial Notes

  • Published Case Name:

    Pereira v Palm Lake Resort Pty Ltd

  • Shortened Case Name:

    Pereira v Palm Lake Resort Pty Ltd

  • MNC:

    [2022] QCAT 75

  • Court:

    QCAT

  • Judge(s):

    Member Deane

  • Date:

    04 Mar 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Michelle Boyes & Anor v Graham Maddisson & Anor [2021] QCAT 423
2 citations
Jump To
Cite 1 - [2021] QCAT 423
Cite 2 - [2021] QCAT 423
O'Neill v Proland Assets Pty Ltd t/a Freedom Pools & Spas [2011] QCAT 81
2 citations
Jump To
Cite 1 - [2011] QCAT 81
Cite 2 - [2011] QCAT 81

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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