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Village Gardens Pty Ltd v Ruth Beekhuyzen[2023] QCAT 140

Village Gardens Pty Ltd v Ruth Beekhuyzen[2023] QCAT 140

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Village Gardens Pty Ltd v Ruth Beekhuyzen [2023] QCAT 140

PARTIES:

village gardens pty ltd

(applicant)

 

v

 

ruth Beekhuyzen

(respondent)

APPLICATION NO:

OCL001-23

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

27 April 2023

HEARING DATE:

11 April 2023

HEARD AT:

Brisbane

DECISION OF:

Member Olding

ORDERS:

  1. If Hazel Gray has paid all site fees then due and payable, for the period from 19 December 2022, by 11 May 2023:
    1. (a)
      The site agreement for the site the subject of these proceedings shall be treated as assigned to Hazel Gray with effect from 19 December 2022.
    2. (b)
      Ruth Beekhuyzen must pay to Village Gardens Pty Ltd outstanding site fees for the period from 27 May 2022 to 18 December 2022 in the amount of $5070.74, by 25 May 2023.
  2. If Ms Hazel Gray does not the pay all outstanding site fees in accordance with order 1:
    1. (a)
      The site agreement is not treated as assigned to Hazel Gray.
    2. (b)
      Hazel Gray must vacate the home by 25 May 2023.
    3. (c)
      Village Gardens Pty Ltd must advise Ruth Beekhuyzen in writing (by email to Ruth Beekhuyzen copied to Adrian Collins at the addresses specified in order 4 below) that Hazel Gray has not paid the outstanding site fees in accordance with order 1, by 18 May 2023.
    4. (d)
      Ruth Beekhuyzen must pay outstanding site fees for the period from 27 May 2022 to 25 May 2023 in the amount of $9084.62, by 8 June 2023.
  1. The application is to be listed for a telephone directions hearing, not before 8 June 2023.
  2. The Tribunal’s registry is to forward a copy of these reasons to:
    1. (a)
      Village Gardens Pty Ltd.
    2. (b)
      The email address for Ruth Beekhuyzen specified in the site agreement.
    3. (c)
      The email address for Adrian Collins specified in the notice of proposed assignment.
  3. Village Gardens Pty Ltd must forward a copy of these reasons to:
    1. (a)
      Hazel Gray at the email address specified in the notice of proposed assignment;
    2. (b)
      Hazel Gray’s lawyers at the email address to which correspondence has previously been sent on behalf of Village Gardens Pty Ltd.

CATCHWORDS:

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – CONTROL OF PARTICULAR MATTERS – RESIDENTIAL – CARAVAN PARKS AND MOVEABLE DWELLINGS – where notice of proposed assignment purportedly signed by home owner’s son on behalf of home owner – where site fees unpaid – whether consent to assignment reasonably withheld – where new “owner” took up occupation without consent to assignment – where home owner did not engage with Tribunal proceedings – whether abandonment order should be made.

Manufactured Homes (Residential Parks) Act 2003 (Qld), s 48, s 49, s 50, s 52, Part 17

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)

Applicant:

J Stephen, Manager, Village Gardens Pty Ltd

Respondent:

No appearance

REASONS FOR DECISION

What is this case about?

  1. [1]
    On 10 November 2011, Ms Ruth Beekhuyzen entered into a site agreement for a manufactured home in a Brisbane residential park operated by Village Gardens Pty Ltd. Ms Beekhuyzen has not occupied the home for over five years. Site fees have not been paid since 13 May 2022.
  2. [2]
    Village Gardens received a notice of a proposed assignment of the site agreement to a Ms Hazel Gray on 8 August 2022. Village Gardens understands that Ms Gray transferred a sum of money to a bank account relating to the purported sale of the home.
  3. [3]
    Although, in principle, Village Gardens would have consented to the proposed assignment, it had concerns about a number of issues, in particular concerning verification of the identity of the purported assignor.  Village Gardens made multiple requests for verification of the identity of the purported assignor, without success.
  4. [4]
    Notwithstanding that Village Gardens had not consented to the assignment, Ms Gray took up occupation of the home on 19 December 2022.
  5. [5]
    As attempts to resolve their concerns failed, Village Gardens applied to this Tribunal for various orders under the Manufactured Homes (Residential Parks) Act 2003 (Qld).
  6. [6]
    A key feature of the case, which complicates its resolution, is the lack of engagement of Ms Beekhuyzen, or her son Mr Adrian Collins who apparently purports to act with her authority, in the Tribunal’s processes. This culminated in a member of this Tribunal making directions on 17 February 2023 that Village Gardens is entitled to a final decision to be made on the papers and that Ms Beekhuyzen is not entitled to dispute matters set out in the application.[1]

Village Gardens’ concerns

Outstanding site fees

  1. [7]
    The outstanding site fees as at 6 January 2023 were $5,883.68, with fees of $355.66, payable fortnightly in advance, accruing since that date.

Notice of proposed assignment and assignment (transfer) documents

  1. [8]
    In the Seller details section of the notice of proposed assignment, the name of the  seller was inserted, in handwriting, as:

Ruth. A. Collins AKA Ruth. A. Beekhuyzen

  1. [9]
    A mobile telephone number and email address, apparently for Mr Collins, were also inserted.
  2. [10]
    In the signature box, the inserted name of the signatory is “Adrian J Collins”; the signature reads “A J Collins”; and is followed by the following:

For Ruth. A. Collins Aka Ruth. A Beekhuyzen

  1. [11]
    In the assignment form itself, the inserted name of the seller is “Ruth Collins”. In the signing panel, the inserted name of the signatory is, again, “Adrian J Collins” and the signature reads “AJ Collins”. This notation appears after the signature:

For and on Behalf Ruth.A. Collins Aka Ruth.A.Beekhuyzen.

  1. [12]
    Both the notice and the transfer have the date “25/5/22” typed into the appropriate part of the signature panel. The notice has the date “8/8/22” typed in answer to the prompt “Date this notice was provided to the park owner”.
  2. [13]
    Subsequently, a statutory declaration dated 31 August 2022 was provided to Village Gardens. Against the prompt “Insert the name address and occupation of person making the declaration”, the following appears:

Ruth Alice Collins (formerly Beekhuyzen) of Tasmania.

  1. [14]
    No address (other than “Tasmania”) or occupation for the declarant appears in the statutory declaration. The body of the declaration is in these terms:
  1. I am one and the same person as Ruth Alice Beekhuyzen who once owned the home at [address omitted] (the home).
  1. I have sold the home to Hazel Gray.
  1. I have authorised my son, Adrian Collins, to represent me in relation to the sale of the home and to sign all forms required under the Manufactured Homes (Residential Parks) Act 2003 (QLD) in relation to the sale of the home, including Form 7 Notice of Proposed Assignment and Form 8 Form of Assignment.
  1. [15]
    Village Gardens had no previous awareness of Ms Beekhuyzen being known as or changing her name to Ruth Collins. No power of attorney has been provided to evidence Mr Collins’ power to sign documents on Ms Beekhuyzen’s behalf.
  2. [16]
    For these reasons, and with increased focus on elder abuse, Village Gardens was concerned about whether there was sufficient evidence to consent to the proposed assignment. Attempts to resolve the issue, including through a mediation scheduled by the Tribunal, were unsuccessful.

Attempts to engage with Ms Beekhuyzen and Mr Collins

  1. [17]
    The following events occurred:
    1. (a)
      31 October 2022 – a mediation was scheduled by the Tribunal but did not succeed in resolving the matter.
    2. (b)
      5 January 2023 – the Tribunal directed Ms Beekhuyzen to file a response to Village Gardens’ application and give a copy of the response to Village Gardens by 27 January 2023. Ms Beekhuyzen did not comply with this direction.
    3. (c)
      2 February 2023 – the Tribunal directed that:
      1. A directions hearing that had been scheduled for 10 March 2023 be vacated.
      2. Village Gardens send copies of its application, the Tribunal’s direction of 5 January 2023 and the direction of 2 February 2023 to Ms Beekhuyzen at the email address inserted in the notice of proposed assignment (presumably Mr Collins’ email address).
      3. Ms Beekhuyzen file and serve a response to the application (as will be noted, the second such direction, the first not being complied with).
      4. If Ms Beekhuyzen did not comply with direction (iii), Village Gardens may be entitled to a final decision and it may be ordered that Ms Beekhuyzen is not entitled to dispute the matters set out in the application.
      5. The application be listed for a directions hearing at 10-30am on 17 February 2023.
    4. (d)
      3 February 2023 - In compliance with the Tribunal’s direction, Village Gardens sent copies of the application and directions to Ms Beekhuyzen at the email address appearing in the notice of proposed assignment.
    5. (e)
      17 February 2023 – The directions hearing was brought on as foreshadowed in the 2 February 2023 directions.  There was no appearance by or on behalf of Ms Beekhuyzen or Mr Collins. Multiple attempts were made by the hearing support officer to contact Ms Beekhuyzen and Mr Collins by telephoning the mobile telephone numbers nominated in the site agreement and notice of proposed assignment respectively. None of the calls were answered.
  2. [18]
    All correspondence from the Tribunal for Ms Beekhuyzen in relation to this application, including copies of the directions referred to above, has been sent to the email address nominated by Ms Beekhuyzen in the site agreement. Additionally, advice of the unsuccessful outcome of a mediation scheduled by the Tribunal was posted to Ms Beekhuyzen at the address of the home. There is also an affidavit of service confirming that Village Gardens served a copy of the application on Ms Beekhuyzen by emailing a copy to the email address nominated in the site agreement.
  3. [19]
    There is no evidence that any of the emails sent to the address for Ms Beekhuyzen appearing in the site agreement or the address for Mr Collins appearing in the notice of proposed assignment, “bounced”. I can only assume they were received. I have no information to indicate, one way or the other, whether they were read.
  4. [20]
    The Tribunal received no response from Ms Beekhuyzen or Mr Collins to any of these attempts to contact Ms Beekhuyzen. I am satisfied that reasonable attempts have been made to draw to Ms Beekhuyzen’s attention that the Tribunal would proceed to make a decision in accordance with the information in the application.

Orders sought by Village Gardens

  1. [21]
    Under s 117 of the Manufactured Homes (Residential Parks) Act 2003, the Tribunal may make any order it considers appropriate to resolve a residential park dispute. Village Gardens has sought the following orders:
    1. (a)
      The park owner is only required to consent to the assignment and enter into a Site Agreement with Hazel Gray upon being provided with the necessary identification and prescribed forms signed by the approved parties as outlined in sections 45 and 47 of the Manufactured Homes (Residential Parks) Act 2003 (‘The Act’).
    2. (b)
      It is reasonable to require outstanding Site Fees to be paid by the Homeowner Ruth Beekhuyzen or as a condition of consent to any assignment and/or transfer.
    3. (c)
      The park owner has not acted contrary to the Act in making investigations as to the bona fide (sic) of the Purchaser and Seller and/or requiring an Order to ensure it is acting lawfully.
    4. (d)
      The park owner has not consented to the assignment and therefore it is not effective pursuant to section 48 of the Act. As a result, Hazel Gray has unlawfully entered the premises and is required to vacate until a time that the park owner has received the necessary proof of identification and given consent to the assignment.
    5. (e)
      An abandonment order be made as all reasonable attempts have been made by multiple parties and legal representatives in an effort to contact the homeowner Ruth Beekhuyzen. No response or form of communication has been received by (sic) the homeowner Ruth Beekhuyzen.

Request for order (c)

  1. [22]
    The request for order (c), and possibly in part order (a), may have been motivated by an “official warning” issued by the acting Manager, Regulatory Affairs at the Department of Communities, Housing and Digital Economy to Village Gardens by letter dated 7 October 2022. The letter advises that the acting manager has “detected an offence” committed by Village Gardens “Between 15 September 2022 to 30 September 2022”.
  2. [23]
    The alleged offence is said to include hindering the proposed assignment by not accepting the notice of proposed assignment. The letter states that:

Regulatory Affairs considers that the Park Owner can rely upon the Seller’s further Statutory Declaration as evidence that Adrian Collins is authorised to sell the manufactured home and assign the Seller’s interest in that home to the Buyer.[2]

  1. [24]
    It is understandable that Village Gardens would be disturbed by the Department’s letter. It is a serious matter for a public official to allege a criminal offence has been committed. As events have transpired, with neither Ms Beekhuyzen nor Mr Collins engaging with the Tribunal despite the efforts made to bring these proceedings to their attention, it may be that Village Gardens’ concerns about the veracity of the proposed assignment were well-founded.[3]
  2. [25]
    However, the dispute resolution provisions in Part 17 of the Act are for the resolution of civil disputes. The Tribunal has no jurisdiction in relation to criminal matters. It is not appropriate for the Tribunal to make an order regarding whether an offence has occurred.
  3. [26]
    I have considered whether an order from the Tribunal regarding the reasonableness of Village Gardens’ conduct in relation to the notice of proposed assignment might assist in resolving the dispute with Ms Beekhuyzen. However, I consider it is more appropriate to deal directly with the question of the assignment.

The other orders sought

  1. [27]
    Aside from the request for order (c), the other orders sought raise issues regarding:
    1. (a)
      The proposed assignment.
    2. (b)
      Whether an abandonment order should be made.
    3. (c)
      Whether Ms Gray should be ordered to vacate the site.
    4. (d)
      The unpaid site fees.
  2. [28]
    These issues are so intertwined that it is necessary to consider them together before turning to what orders are appropriate. The matter is further complicated by the fact that Ms Gray has taken up residence in the home and the orders sought, if granted, would require her to vacate the home. I have no evidence regarding how readily alternative accommodation would be available for Ms Gray, who is not a party to this proceeding.
  3. [29]
    It is plain that no assignment of the site agreement has occurred or can be taken to have occurred. This is clear from s 48(1) of the Act which states:

The assignment of the seller’s interest is not effective unless the park owner has consented to the assignment.

  1. [30]
    The park owner must not unreasonably refuse to consent to a proposed assignment: s 49(3). However, it is not open to the parties to a proposed assignment to form a view that refusal of consent is unreasonable and proceed with the assignment in the absence of consent.
  2. [31]
    The remedy if a seller considers a park owner is unreasonably refusing to consent to a proposed assignment is for the seller to apply to the Tribunal for an order that the park owner consent to the proposed assignment: s 50(2).  No such application has been made.
  3. [32]
    Village Gardens has not consented to the assignment. Any purported assignment therefore has no legal effect. Accordingly, as matters currently stand, no assignment of the site agreement has taken place.  Ms Gray currently has no right to occupy the site.
  4. [33]
    In my view, it was reasonable for Village Gardens to seek to confirm that Ms Beekhuyzen intended to assign the site agreement.  While the statutory declaration was provided, it contained no explanation of why Ms Beekhuyzen was unable or unwilling to complete the forms herself, nor was any opportunity taken to provide other confirmation, independent of Mr Collins, of his authority to act on behalf of Ms Beekhuyzen.
  5. [34]
    However, as matters now stand Ms Beekhuyzen has had ample opportunity, either directly or through Mr Collins, to convey her views if she does not consent to the assignment.  In those circumstances, rather than disrupt Ms Gray’s occupation of the home, there is a case for treating the transfer has having been consented to and of legal effect.
  6. [35]
    Further, I consider it is not appropriate to make an abandonment order at this stage.  The execution of the transfer forms and apparent purported sale of the home to Ms Gray are inconsistent with an intention to abandon the home. Although it is difficult to be unequivocal when Ms Beekhuyzen and Mr Collins have not engaged with the Tribunal, the very absence of such engagement suggests or leaves open that Ms Beekhuyzen would at least not oppose the assignment. Additionally, I do not have evidence of the matters specified in s 52 of the Manufactured Homes (Residential Parks) Act 2003 relevant to whether an abandonment order should be made.
  7. [36]
    There is, however, no reason why Village Gardens should be out of pocket for outstanding site fees.  Of course, nor should Village Gardens “double dip” so to speak by receiving site fees from Ms Gray and an order for Ms Beekhuyzen to pay outstanding fees for the same period.[4]
  8. [37]
    In the circumstances, I consider the approach most likely to achieve practical justice and be least disruptive is to order that the assignment be treated as effective provided Ms Gray pays site fees for the period since she commenced occupation.[5] If Ms Gray does not do so, she should be required to vacate the premises. 
  9. [38]
    Ms Beekhuyzen must pay any fees up to the date from which Ms Gray pays site fees.[6] I will make orders to that effect which Village Gardens may seek to enforce in the same way as any landlord left with rent unpaid by a vacating tenant.
  10. [39]
    To avoid unnecessary disruption, I will allow approximately one month for these arrangements to be implemented. I will also make orders to ensure, as far as possible, that Ms Beekhuyzen, Mr Collins and Ms Gray receive a copy of these reasons.
  11. [40]
    After this time and against the continency that site fees for the period of Ms Gray’s occupancy remain outstanding, I will list the application for a directions hearing at which Village Gardens may indicate whether it wishes to maintain an application for an abandonment order.[7] If necessary and appropriate, directions may then be made for provision of supporting evidence and submissions addressing the requirements and potential orders that may be made under s 52 of the Manufactured Homes (Residential Parks) Act 2003.

Footnotes

[1] Accordingly, all factual findings in these reasons are based on the application and associated materials.

[2] The reference to a “further” statutory declaration is curious.  I am not aware of any statutory declaration other than the declaration dated 31 August 2022.

[3] To be clear, I make no finding in that regard.

[4] To be clear, there is no suggestion that Village Gardens seek such an outcome.

[5] I have calculated the amount as 9 fortnights at $337.60, plus 5 fortnights at $355.66, plus 10/14ths of $355.66.

[6] If Ms Gray does not pay any site fees, I have calculated the amount payable by Ms Beekhuyzen using the total outstanding site fees to 19 January 2023 of $5,883.68 disclosed in the application as the starting point and adding 9 fortnights at $355.66.

[7] If Ms Gray pays site fees as ordered it is expected that Village Gardens will notify the Tribunal so that the directions hearing may be vacated.

Close

Editorial Notes

  • Published Case Name:

    Village Gardens Pty Ltd v Ruth Beekhuyzen

  • Shortened Case Name:

    Village Gardens Pty Ltd v Ruth Beekhuyzen

  • MNC:

    [2023] QCAT 140

  • Court:

    QCAT

  • Judge(s):

    Member Olding

  • Date:

    27 Apr 2023

Appeal Status

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

Cases Cited

No judgments cited by this judgment.

Cases Citing

Case NameFull CitationFrequency
Hometown Australia Burpengary Pty Ltd v The Executor of the Estate of the late Laurel Harrison [2024] QCAT 4022 citations
1

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