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Palm Lake Resort Pty Ltd v Graham[2024] QCAT 269

Palm Lake Resort Pty Ltd v Graham[2024] QCAT 269

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Palm Lake Resort Pty Ltd v Graham [2024] QCAT 269

PARTIES:

PALM LAKE RESORT PTY LTD

(applicant)

v

GORDON GRAHAM

(respondent)

JUDY GRAHAM

(respondent)

APPLICATION NO/S:

OCL067-22

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

26 June 2024

HEARING DATE:

3 June 2024

HEARD AT:

Brisbane

DECISION OF:

A/Member Lumb

ORDERS:

The Application filed on 8 November 2022 is dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – JURISDICTION OF TRIBUNAL – where application to Tribunal to resolve dispute under the Manufactured Homes (Residential Parks) Act 2003 (Qld) – where respondents contend that their residence is not a ‘manufactured home’ as defined in the Act – whether dispute the subject of the Application is a ‘residential park dispute’ – whether Tribunal has jurisdiction to resolve dispute

Manufactured Homes (Residential Parks) Act 2003 (Qld), s 8, s 10, s 14A, s 115, s 117, Schedule 2

McKegney v Roofley Pty Ltd [2011] QCATA 221

Monte Carlo Caravan Park Pty Ltd v Curyer & Curyer [2006] QCA 363

APPEARANCES & REPRESENTATION:

Applicant

Self-represented

Respondent

Self-represented

REASONS FOR DECISION

Introduction

  1. [1]
    By an application filed on 8 November 2022 (‘the Application’), the Applicant seeks the resolution by the Tribunal of a ‘residential park dispute’ pursuant to s 115 of the Manufactured Homes (Residential Parks) Act 2003 (Qld) (‘the MHA’). The Applicant is the owner of the ‘Palm Lake Resort Hervey Bay’ (‘the Resort’) which is located at Eli Waters in the State of Queensland. The Respondents to the Application reside at the Resort.
  2. [2]
    In summary, the Applicant alleged a contravention by the Respondents of:
    1. (a)
      s 98 of the MHA by making an alteration or addition to their residence, namely painting, without the written consent of the Applicant;
    2. (b)
      s 105 of the MHA in respect of alleged conduct directed at employees of the Applicant.
  3. [3]
    In their material, the Respondents have raised an argument that goes to the issue of jurisdiction.

The issue of jurisdiction

  1. [4]
    Section 115 of the MHA provides that a party to a residential park dispute may, subject to section 116, apply to the Tribunal for an order to resolve the dispute.[1]
  2. [5]
    Section 117 of the MHA provides:

If a party to a residential park dispute applies to the tribunal for an order in relation to the dispute, the tribunal may make the following orders—

  1. (a)
    an order the tribunal is authorised to make in relation to the application under another provision of this Act;
  2. (b)
    any other order the tribunal considers appropriate to resolve the dispute.
  1. [6]
    As is evident from sections 115 and 117, central to the jurisdiction of the Tribunal to decide the Application is the existence of a ‘residential park dispute’ between the Applicant and the Respondents.
  2. [7]
    The Dictionary to the MHA defines ‘residential park dispute’ by reference to s 14A of the MHA. Section 14A(1) provides that a ‘residential park dispute’ is, relevantly:
  1. (c)
    a dispute between the park owner and home owner under a site agreement about—
  1. (i)
    the parties’ rights or obligations under the agreement or this Act; or
  2. (ii)
    another matter provided for under this Act

…

  1. [8]
    The threshold issue is whether the Respondents are a ‘home owner’ within the meaning of the MHA.
  2. [9]
    The definition of ‘home owner’ in Schedule 2 to the MHA follows:

home owner—

  1. (a)
    generally—see section 8; and
  2. (b)
    in a provision about a residential park—means a home owner for the park; and
  3. (c)
    in a provision about a site agreement—means the home owner under the agreement.
  1. [10]
    Section 8 provides:
  1. (1)
    Each of the following is a home owner—
  1. (a)
    a person who owns a manufactured home that is positioned on a site in a residential park under a site agreement;
  2. (b)
    a person who intends to position a manufactured home on a site in a residential park under a site agreement for use by the person as the person’s principal place of residence;
  3. (c)
    a person who obtains an interest in a site agreement as the personal representative, or a beneficiary of the estate, of a deceased individual who immediately before the individual’s death was a person mentioned in paragraph (a) or (b);
  4. (d)
    another successor in title of a person mentioned in paragraph (a) or (b).
  1. (2)
    A person mentioned in subsection (1)(a) is a home owner whether—
  1. (a)
    the person occupies the home as the person’s principal place of residence; or
  2. (b)
    a tenant of the person occupies the home.
  1. [11]
    In my view, the subsection material to the present case is s 8(1)(a): ‘a person who owns a manufactured home that is positioned on a site in a residential park under a site agreement’.
  2. [12]
    The critical question is whether the Respondent’s residence at the Resort is a ‘manufactured home’ within the meaning of that phrase in the MHA.[2]
  3. [13]
    The Dictionary to the MHA defines ‘manufactured home’ by reference to s 10 of the MHA.
  4. [14]
    Section 10 of the MHA provides:
  1. (1)
    A manufactured home is a structure, other than a caravan or tent, that—
  1. (a)
    has the character of a dwelling house; and
  2. (b)
    is designed to be able to be moved from one position to another; and
  3. (c)
    is not permanently attached to land.
  1. (2)
    A manufactured home does not include a converted caravan.
  2. (3)
    However, if a park owner and the owner of a converted caravan enter into an agreement, that would be a site agreement if it related to a manufactured home, for a site on which the converted caravan is positioned or intended to be positioned—
  1. (a)
    the converted caravan is taken to be a manufactured home; and
  2. (b)
    the agreement is taken to be a site agreement.
  1. (4)
    To remove any doubt, it is declared that an agreement entered into under another Act or a former Act, other than the repealed Mobile Homes Act 1989, is not a site agreement under subsection (3).

Example—

A residential tenancy agreement entered into under the Residential Tenancies and Rooming Accommodation Act 2008 is not a site agreement under subsection (3).

  1. [15]
    The proper approach to considering the application of s 10 was set out by the Queensland Court of Appeal in Monte Carlo Caravan Park Pty Ltd v Curyer (‘Monte Carlo’):[3]

The [MHA] does not invite a notional dismantling of the structure in question, nor does it require some form of historical inquiry into the provenance of the components of the structure. The inconvenience of either approach is obvious, but it is not necessary to have resort to arguments from inconvenience. It is clear from the language of the statute that the [MHA] operates by reference to the structure as it exists on site when the effect of the legislation falls to be considered.

(underlining added)

  1. [16]
    In applying s 10, the Respondents’ residence is to be considered as ‘functionally ... one structure’.[4]
  2. [17]
    In my view, for the Tribunal to be satisfied that the Respondents’ residence was a ‘manufactured home’, the Applicant must establish, on the balance of probabilities, that each of the elements set out in subsections 10(1)(a), (b) and (c) respectively is satisfied.
  3. [18]
    There is no dispute that, and I find that, the Respondents’ residence has the character of a dwelling house.
  4. [19]
    The Respondents contend that neither of subsections 10(1)(b) and (c) is satisfied.
  5. [20]
    The Respondents put their case as follows:[5]

Sections of our property, namely

  1. 1.The garage
  2. 2.The front porch
  3. 3.The back patio/verandah

Utilise the slab as the floor.

It is difficult to reconcile this build with a design capable of moving the building from site to site.

Similarly the property does not comply with (c) in that the floor of:

  1. 1.The garage
  2. 2.The front porch
  3. 3.The back patio/verandah

are permanently attached to the site.

Based on these facts, the villa would not conform to the definition of a Manufactured Home under the Manufactured Homes (Residential Parks) Act 2003, as relied upon by Palm Lake in this action. We prevail upon the Tribunal to dismiss this action.

  1. [21]
    In reply, the Applicant stated:[6]
  1. 1.1The Respondents make claim that the home is not relocatable, and that they should not be governed by the Manufactured Homes (Residential Parks) Act 2003.
  2. 1.2This is clearly an ill informed and uneducated position, with no evidence to support such a claim.
  3. 1.3It should be noted that the Applicant purchased the village in 2013 from Baclon Pty Ltd, trading as Noble Lakeside. The Applicant did not build the dwelling, but notes that general design of manufactured homes provide a tie down to the slab allowing for relocatability.
  4. 1.4It should be noted that the Respondents purchased the home in 2020 from the Estate of Colin and Anita Newport, not from the Applicant.
  5. 1.5Annexure (i) is the Development Application Decision Notice from Fraser Coast Regional Council dated 20 November 2014, outlining the position that the application is for a Relocatable Home Park.
  6. 1.6The Respondents [sic] Site Agreement clearly outlines that they are governed by the Manufactured Homes (Residential Parks) Act 2003, and provides at page 2 a definition of a Manufactured Home (Annexure (ii)). No concerns surrounding relocatability were raised by the Respondents during purchase.
  1. [22]
    Annexure (i) was a copy of the Development Application Decision Notice (‘the Decision Notice’) which made reference to a proposal for a Material Change of Use described as ‘Relocatable Home Park incorporating 209 home sites, manager’s residence and office and communal facilities (over 50s lifestyle resort)’. The Decision was to grant approval subject to conditions (the conditions were said to be set out in ‘Attachment 1’ but this was not included in Annexure (i)).
  2. [23]
    The Site Agreement which was entered into between the Applicant and the Respondents was based on a standard form (Form 2) under the MHA.
  3. [24]
    At the hearing, each of the Respondents was cross-examined.
  4. [25]
    Mrs Graham was not cross-examined on this issue.
  5. [26]
    The focus of the cross-examination of Mr Graham was (impermissibly) on the basis that the effect of the Respondents’ case was that the Decision Notice was ‘invalid’.
  6. [27]
    Whilst the Respondents’ evidence is quite brief, their uncontradicted evidence is that the garage, front porch and back patio of their ‘villa’ utilise the slab as the floor, and each of those areas is permanently attached to the site (although there is an absence of evidence as to what that attachment comprises). Further, the colour photographs provided by the Applicant of the Respondents’ residence indicate that:
    1. (a)
      the garage at the front of the residence appears to be enclosed at least on the side of the garage and at the front (where a roller door is installed);
    2. (b)
      there appears to be no separation between the garage and the balance of the residence at the front of the property;
    3. (c)
      the roof of the residence (including the garage) appears to be constructed of corrugated iron/steel sheeting and to be interconnected (likewise the guttering).
  7. [28]
    Despite the Applicant being put on notice that the Respondents asserted that their residence was not a ‘manufactured home’, the Applicant led no evidence relevant to the factual enquiry posed by subsections 10(1)(b) and (c) of the MHA. The focus of that enquiry is whether the whole of the structure comprising the Respondent’s residence satisfies both of those subsections. In my view, the Decision Notice has no bearing on this issue. The Decision Notice was a planning notice in relation to the Resort as a whole. Similar, I consider that the use of a standard form for manufactured homes for the site agreement between the parties does not provide evidence capable of establishing that subsections 10(1)(b) and (c) of the MHA are satisfied. The Applicant’s submission that ‘the general design of manufactured homes provide a tie down to the slab allowing for relocatability’ says nothing about the degree of attachment of the Respondents’ residence to the land upon which it is situated nor the ability to move that structure from one position to another.
  8. [29]
    I am not satisfied, on the balance of probabilities, that the Respondents’ residence:
    1. (a)
      is designed to be able to be moved from one position to another;
    2. (b)
      is not permanently attached to the land on which it is situated.
  9. [30]
    Consequently, I am not satisfied that:
    1. (a)
      the Respondents’ residence is a ‘manufactured home’ within the meaning of the MHA;
    2. (b)
      the Respondents are a ‘home owner’ within the meaning of the MHA;
    3. (c)
      the dispute the subject of the Application is a ‘residential park dispute’ within the meaning of the MHA.
  10. [31]
    It follows that the Tribunal does not have jurisdiction under the MHA to resolve the dispute between the parties.

Orders

  1. [32]
    For the reasons set out above, the Application filed on 8 November 2022 is dismissed.

Footnotes

[1] There is no dispute that the requirements of s 116 have been complied with.

[2] Cf McKegney v Roofley Pty Ltd [2011] QCAT 221.

[3] [2007] 2 Qd R 57, [14] (Keane JA (as his Honour then was), Jerrard JA and Holmes JA (as her Honour then was) agreeing).

[4] McKegney v Roofley Pty Ltd [2011] QCATA 221, [17], citing Monte Carlo, [15].

[5] Respondents' submissions filed on 8 May 2023, pages 1-2.

[6] Applicant’s material in reply filed on 7 June 2023.

Close

Editorial Notes

  • Published Case Name:

    Palm Lake Resort Pty Ltd v Graham

  • Shortened Case Name:

    Palm Lake Resort Pty Ltd v Graham

  • MNC:

    [2024] QCAT 269

  • Court:

    QCAT

  • Judge(s):

    A/Member Lumb

  • Date:

    26 Jun 2024

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
McKegney v Roofley Pty Ltd [2011] QCATA 221
2 citations
Jump To
Cite 1 - [2011] QCATA 221
Cite 2 - [2011] QCATA 221
Monte Carlo Caravan Park Pty Ltd v Curyer[2007] 2 Qd R 57; [2006] QCA 363
2 citations
Jump To
Cite 1 - [2006] QCA 363
Cite 2 - [2007] 2 Qd R 57
Toowong Bowls Club Inc v Queensland Gaming Commission [2011] QCAT 221
1 citation
Jump To
Cite 1 - [2011] QCAT 221

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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