Coates v Hazelmere Village RLLC Pty Ltd
[2023] QCAT 419
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- Unreported Judgment
- Coates v Hazelmere Village RLLC Pty Ltd[2023] QCAT 419
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Coates v Hazelmere Village RLLC Pty Ltd[2023] QCAT 419
Coates v Hazelmere Village RLLC Pty Ltd[2023] QCAT 419
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Coates v Hazelmere Village RLLC Pty Ltd [2023] QCAT 419 |
PARTIES: | George reginald coates (applicant) v hazelmere village rllc pty ltd (respondent) |
APPLICATION NO/S: | OCL046-23 |
MATTER TYPE: | Other civil dispute matters |
DELIVERED ON: | 2 November 2023 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Deane |
ORDERS: |
|
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS – OTHER MATTERS – whether interim order restraining a residential park owner from breaching pre-contractual representations or informal agreement or site agreement should be made Manufactured Homes (Residential Parks) Act 2003 (Qld), s 14A, s 72 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 38, s 58 Queensland Civil and Administrative Tribunal Regulation 2019 (Qld), s 5, s 8 Parkview Management Pty Ltd v Body Corporate for Boca Raton Community Titles Scheme 22486 [2018] QCAT 6 |
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) |
REASONS FOR DECISION
- [1]It is not in dispute that Mr Coates is a homeowner at a residential park regulated by the Manufactured Homes (Residential Parks) Act 2003 (Qld) (the Act). Since Mr Coates entered into his site agreement, the ownership of the park has changed. Mr Coates says that it was represented by the former park owner at the time he entered into the site agreement that he could store his caravan and boat behind his home at no additional cost. He has stored his possessions there for some time, including after the change in ownership. Recently the park owner has claimed that Mr Coates is not entitled to store his caravan and boat in that location and has sought that they be removed.
- [2]Mr Coates applied for an interim order that:
- the respondent in this matter cease all efforts to force the removal of the applicant’s boat and caravan, presently stored within the park until the matter has been determined by QCAT;
- any other orders the Tribunal deems necessary.
- [3]
- [4]It is not disputed that the name of the park owner is Hazlemere Village RLLC Pty Ltd. The Tribunal’s record is to be amended to reflect the proper name of the respondent.
- [5]Before making a final decision, the tribunal may make an interim order it considers appropriate in the interests of justice to protect the party’s position for the duration of the proceeding or to require or permit something to be done to secure the effectiveness of the exercise of the Tribunal’s jurisdiction.[3]
- [6]Mr Coates is the applicant and bears the onus to establish he is entitled to the orders sought.
- [7]Whether an interim order should be made depends upon the nature of the orders ultimately sought and whether the interim order is in aid of that relief.
- [8]It is not clear what final orders Mr Coates is seeking, although it appears that he is effectively seeking an order that the respondent is not entitled to seek the removal of his caravan or boat on a permanent basis.
- [9]The interim orders sought mirror what I understand to be the final relief sought. Mr Coates is seeking to preserve the status quo (i.e., not having to move his possessions) pending a determination of whether the final relief ought to be granted.
- [10]Mr Coates claims that the request for him to remove his caravan and boat is in breach of the agreement he reached with the former park owner at the time he entered into the site agreement. He produced a brochure which he says he was given during the negotiations which he says supports his contentions about the availability of storage.
- [11]The usual factors for the making of an interim order are:
- why the order is required to protect a party’s position for the duration of the proceeding or is required to secure the effectiveness of a final decision;[4]
- whether Mr Coates has an arguable case that may entitle him to final relief;
- whether the balance of convenience favours the making of the order, including why damages are not an adequate remedy, if the park owner is found to have taken action contrary to law;
- to the extent that the interim order seeks the park owner to be restrained from doing something it contends it is entitled to do, whether Mr Coates offers an undertaking as to costs or damages[5] and the value of any such undertaking.
- [12]Neither party in their submissions directly addressed these matters.
- [13]In relation to the balance of convenience, SM Brown has observed:
The court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been ‘wrong’, in the sense of granting an injunction to a party who fails to establish his right at the trial, or in failing to grant an injunction to a party who succeeds at trial.[6]
- [14]
- [15]The current park owner says it is not privy to the conversation relied upon. The park owner contends that even if the previous park owner agreed for Mr Coates to store his possessions at the rear of his home that accessing them through local council land is a contravention of a local law and it is not able to continue to agree for Mr Coates to store his possessions in that location when it is aware that accessing them would contravene a local law.
- [16]Mr Coates has offered an undertaking not to remove his possessions from behind his home pending the determination in this matter so that he would not be in contravention of the local law during that time.
- [17]Mr Coates has not offered an undertaking as to damages in the usual sense of the term. There is no evidence before me as to the value of any undertaking which Mr Coates may offer. This is a factor against an interim order being granted.
- [18]Even if I accepted that Mr Coates has an arguable case for final relief, I am not satisfied that the balance of convenience favours an interim order because I am not satisfied on the evidence and submissions before me that damages are not an adequate remedy.
- [19]There is evidence before me that if Mr Coates was to remove his possessions as demanded by the park owner that Mr Coates will incur costs in the order of at least $35 a week. There is evidence before me of storage costs at external commercial premises relatively nearby. Whilst it may be more convenient for Mr Coates to have his possessions stored behind his home the evidence appears to be that the loss, he may suffer is one for which damages would be an adequate remedy in the event that he was entitled to final relief.
- [20]I am not satisfied that Mr Coates has demonstrated that the interim order should be granted.
- [21]The park owner sought an order that Mr Coates is not to traverse the Council easement in order to store his caravan and boat to the rear of the home. The park owner has not paid a filing fee and is not therefore entitled to seek such an order. Unless a filing fee is paid the document is regarded as a response only and not a counter-application.[9]
- [22]Directions should be made so that the dispute as to final relief may progress.
Footnotes
[1] 7 August 2023, 23 August 2023, 8 September 2023.
[2] Pursuant to directions made Mr Coates filed a formal Application for interim order together with submissions on 22 August 2023 and submissions in reply on 10 October 2023; Hazlemere Village RLLC Pty Ltd filed a response and/or counter application on 1 September 2023 and a revised response and/or counter application on 5 October 23.
[3] QCAT Act, s 58(1).
[4] Ibid, s 58(1).
[5] Ibid, s 58(3).
[6] Parkview Management Pty Ltd v Body Corporate for Boca Raton Community Titles Scheme 22486 [2018] QCAT 6, [24].
[7] The Act, s 14A.
[8] Ibid, s 72.
[9] QCAT Act, s 38; Queensland Civil and Administrative Tribunal Regulation 2019 (Qld), s 5, s 8.