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  4. Hometown Australia Burpengary Pty Ltd v The Executor of the Estate of the late Laurel Harrison - [2024] QCAT 402

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Hometown Australia Burpengary Pty Ltd v The Executor of the Estate of the late Laurel Harrison[2024] QCAT 402

Hometown Australia Burpengary Pty Ltd v The Executor of the Estate of the late Laurel Harrison[2024] QCAT 402

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Hometown Australia Burpengary Pty Ltd v The Executor of the Estate of the late Laurel Harrison [2024] QCAT 402

PARTIES:

Hometown Australia Burpengary Pty Ltd t/as GREEN WATTLE BURPENGARY

(applicant)

v

The Executor of the Estate of the late Laurel Harrison

(respondent)

APPLICATION NO/S:

OCL 074-23

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

20 September 2024

HEARING DATE:

On the papers

DECISION OF:

Member Taylor

ORDERS:

  1. The respondent’s Application for Miscellaneous Matters filed 21 June 2024 is dismissed.

Abandonment Order

  1. Pursuant to s 52(3) of the Manufactured Homes (Residential Parks) Act 2003 (Qld), the manufactured home situated on the site described as ‘TB 20 / 134-140 Bruce Highway Eastern Service Rd, Burpengary East, Qld, 4505’, such being in the manufactured home park known as ‘Green Wattle Burpengary’, is abandoned, and was abandoned as at the end of the day 2 August 2023.

Sale Orders

  1. Pursuant to s 52(6)(a) of the Manufactured Homes (Residential Parks) Act 2003 (Qld), the applicant is authorised to:
    1. subject to satisfaction of the conditions of sale as per Orders 5 to 10 herein, sell the said manufactured home; and
    2. subject to satisfaction of Orders 11 and 12 herein, sell any personal effects of the respondent remaining in the manufactured home or on the said site.
  1. Pursuant to s 53(5) of the Manufactured Homes (Residential Parks) Act 2003 (Qld), in implementing Order 3 herein, the applicant is authorised to sell the manufactured home or the said personal effects to a prohibited person.

Conditions of the Sale Orders

  1. The respondent is to enter into a ‘selling authority’ with the applicant in the manner provided for under s 60 of the Manufactured Homes (Residential Parks) Act 2003 (Qld) for sale of the manufactured home on the existing site, such to be done promptly but not later than thirty (30) calendar days after the date of this order.
  2. The conditions of the said ‘selling authority’ include that provided for in Orders 4 and 11 herein.
  3. Subject to that provided for by Order 8 herein, within fourteen (14) days of the date of this order the parties must jointly appoint a registered valuer to determine the resale value of the said manufactured home on the existing site.
  4. If the parties cannot agree on the appointment of a registered valuer within the period mentioned in Order 7 herein, the provisions of s 62M of the Manufactured Homes (Residential Parks) Act 2003 (Qld) shall be adopted and apply to effect the requisite appointment.
  5. The parties shall be bound by the resale value of the as determined by the valuer.
  6. The valuer’s costs of conducting the valuation must be paid by the respondent, but may be paid by the applicant in the first instance as a term of the engagement of the valuer, or if otherwise the valuer is prepared to wait for payment until after the said manufactured home is sold and settlement under the contract of sale is effected then the following will apply. In all instances, such cost shall form part of that to be applied from the proceeds of sale under s 54(2)(b) of the Manufactured Homes (Residential Parks) Act 2003 (Qld) and to the extent relevant be reimbursed to the applicant, or paid to the valuer,  at settlement of the sale of the manufactured home.
  7. Any offer made to the respondent from a ‘prohibited person’, as that term is used in s 53(6) of the Manufactured Homes (Residential Parks) Act 2003 (Qld), through the applicant as a sale agent pursuant to the ‘selling authority’ provided for in Order 5 herein, must be accepted by the respondent when it is equivalent to or higher than the resale value determined by the valuer.

Other Orders

  1. The applicant is to permit the respondent access to the manufactured home following the respondent giving 2 business days written notice to the applicant of request for same, such access to be limited to a single period up to a maximum of seven (7) calendar days , and all to be completed promptly but not later than thirty (30) calendar days after the date of this order, for the purposes of the respondent:
    1. removing any personal effects remaining in the manufactured home or on the site; and
    2. preparing the manufactured home for sale in terms of cleaning and repairs.
  2. The respondent is to promptly, upon being given access as per Order 12 herein:
    1. remove any personal effects remaining in the manufactured home or on the site, failing which the applicant is at liberty to sell same pursuant to Order 3(b) herein; and
    2. prepare the manufactured home for sale in terms of cleaning and repairs, failing which the applicant is at liberty to do same to the extent reasonably necessary.
  3. To the extent the applicant incurs:
    1. costs in satisfaction of Order 13(b) herein; and/or
    2. any marketing expenses associated with the sale of the said manufactured home in its performance of the ‘selling authority’ as provided for in Order 5 herein;

in each instance such shall form part of that to be applied from the proceeds of sale under s 54(2)(b) of the Manufactured Homes (Residential Parks) Act 2003 (Qld) and be reimbursed to the applicant at settlement of the sale of the manufactured home.

  1. The applicant’s Application for an Abandonment Order is otherwise dismissed to the extent it sought any other orders.

CATCHWORDS:

PERSONAL PROPERTY – OWNERSHIP AND POSSESSION – POSSESSION – OTHER MATTERS where a deceased’s estate included a manufactured home on a site in a manufactured home park – where pursuant to terms of orders made by consent in the Tribunal the site agreement, for the rental of the site on which the manufactured home was located, was terminated – where as a consequence of termination of the site agreement vacant possession of the site was to be given to the park owner – where vacant possession was not given – where the park owner applied to the Tribunal for an abandonment order and a sale order under the Manufactured Homes (Residential Parks) Act 2003 (Qld)

Acts Interpretation Act 1954 (Qld), Schedule 1

Human Rights Act 2019 (Qld), s 24, s 25

Manufactured Homes (Residential Parks) Act 2003 (Qld), s 8, s 14A, s 52, s 53, s 54, s 55, s 60, s 62M, s 117

Manufactured Homes (Residential Parks) Amendment Act 2024 (Qld), s 11

Manufactured Homes (Residential Parks) Bill 2003 (Qld)

Mobile Homes Act 1989 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(c), s 28(3)(e), s 32, s 132

Working with Children (Risk Management and Screening Act) 2000 (Qld), s 226(2), s 228(2)

Alcan (NT) v Territory Revenue (2009) 239 CLR 27

Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303

Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291

Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492

De Soysa v De Pless Pol (1912) A.C. 194

Summers v The Commonwealth (1918) 25 CLR 144

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

Wadley Properties No 1 Pty Ltd v Davis (No 2) [2012] QCAT 545

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

Overview

  1. [1]
    Ms Harrison had been a long term resident in her manufactured home situated in a home park owned by Hometown. Sadly, she passed away in late 2019. Her son, Mr Harrison became her executor. He was living in the home.
  2. [2]
    Issues arose between Mr Harrison, in his capacity as executor, and Hometown. Such resulted in orders being made by this Tribunal, by consent, in September 2022 requiring Mr Harrison to make certain payments to Hometown. Those orders provided for termination of the agreement under which the home was situated in the park should Mr Harrison default in meeting those payments, and that upon termination Mr Harrison was required to give vacant possession of the site to Hometown if the manufactured home was not earlier sold or removed.
  3. [3]
    He defaulted. The manufactured home had not been sold or removed. The site agreement was terminated. He vacated the home, removed some of the personal effects contained therein, and had the mail redirected. Hometown disconnected the utilities to the home. Mr Harrison did not give vacant possession of the site.
  4. [4]
    Ultimately Hometown applied to this Tribunal for an abandonment order and a sale order under the  Manufactured Homes (Residential Parks) Act 2003 (Qld) (the MH Act), and consequential orders. Mr Harrison opposed that application. He argued he had not abandoned the home, asserting that the only reason he had vacated it, removed some personal effect, and had the mail redirected, was because Hometown had terminated the site agreement. He stated he wished to live in the home.
  5. [5]
    Mr Harrison’s arguments against an abandonment order and a sale order were without substance. The circumstances he found himself in were of his own making. Hometown was entitled, in part, to the relief it sought. It succeeded in obtaining an abandonment order and a sale order, but was not successful in terms of all the consequential orders. By agreement between the parties reached via the exchange of submissions in this proceeding, orders were made placing conditions on the sale order.

Background[1]

  1. [6]
    On 24 September 2014, Ms Laurel Harrison entered into a ‘Manufactured Homes Site Agreement’ under the MH Act  (the Site Agreement). Thereunder Ms Harrison rented the site known as ‘20 The Boulevarde, Burpengary East’, in a residential park known as ‘Bindawalla Gardens’ (the Site). That agreement records the park owner as New Concept Developments Pty Ltd.[2]
  2. [7]
    Thereafter Ms Harrison lived in a manufactured home placed on the Site. (the Home)
  3. [8]
    Whilst there is nothing contained in the Tribunal file as it is before me, given the extent to which this proceeding has already unfolded, directions have been given, and submissions have been made, it appears to be common ground that the park owner subsequently became Hometown Australia Burpengary Pty Ltd (Hometown), the applicant in this proceeding, and the residential park became known as ‘Green Wattle Burpengary’ (the Park). I infer that Hometown acquired the Park from New Concept Developments Pty Ltd, and in turn the Site Agreement was assigned to Hometown.
  4. [9]
    Hometown says it was informed, in or around January 2020, Ms Harrison had passed away and that her son, a Mr Mark Richard Paul Harrison aka Richard Harrison, became the executor of her estate (Mr Harrison).[3] Mr Harrison fulfilled the role of respondent in this proceeding in that capacity.[4]
  5. [10]
    On 20 September 2022, in a related proceeding in this Tribunal, namely OCL 038-21, between the same named parties as is in this proceeding before me, and in one which I infer Mr Harrison also fulfilled the role of the respondent in his capacity as executor, by a decision given therein shown as having been ‘BY CONSENT’ orders were made that (the Consent Orders):[5]
    1. Mr Harrison was to make certain payments to Hometown;
    2. Upon default of any payments therein:
      1. Hometown may issue to Mr Harrison a Notice of Default providing for termination of the Site Agreement;
      2. the Site Agreement is terminated on the termination date;
      3. The termination dated is a day 90 days after the day Hometown served the Notice of Default (excluding the date of service of the Notice of Default) if the Home is not earlier sold or removed in accordance with the MH Act; and
      4. Mr Harrison is to give Hometown vacant possession of the Site on the termination date if the Home is not earlier sold or removed in accordance with the MH Act.
  6. [11]
    On 4 May 2023, by a document entitled ‘Notice of Default’, Hometown served on Mr Harrison the notice of default provided for in the Consent Orders, wherein the following statements appear (the Notice of Default):[6]
    1. The Site Agreement is terminated as at 2 August 2023;
    2. Mr Harrison was to provide vacant possession of the Site on 2 August 2023 if the Home is not earlier sold or removed in accordance with the MH Act.
  7. [12]
    On 20 July 2023, Mr Harrison filed an Application for Miscellaneous Matters by which he sought orders that the Notice of Default was not to be enforced.[7]
  8. [13]
    On 1 August 2023, Mr Harrison applied to this Tribunal to have the Notice of Default stayed. That application was dismissed on 2 August 2023.[8]
  9. [14]
    On 6 September 2023, this Tribunal dismissed Mr Harrison’s application for orders that the Notice of Default was not to be enforced.[9]
  10. [15]
    On 23 November 2023, Hometown filed an application in this Tribunal wherein it sought orders:[10]
    1. By way of a declaration that the Home had been abandoned;
    2. It be authorised to sell the Home with the proceeds of sale to be applied as per s 54(2) of the MH Act; and
    3. It be entitled to receive after-termination-rent from 2 August 2023 to the day the Home is sold in accordance with the above mentioned order.
  11. [16]
    On 9 February 2024, Mr Harrison filed his response to that application wherein he asserted:[11]
    1. On 14 September 2019 he became the owner of the Home as the sole beneficiary of the estate and the successor in title of Ms Harrison;[12]
    2. He admitted that the Site agreement was terminated on 2 August 2023;[13]
    3. He vacated and ceased residing in the Home as from 2 August 2023;[14]
    4. He has continued to pay site rent on a fortnightly basis since vacating the Home on 2 August 2023;[15]
    5. Whilst the Home has been unoccupied since 2 August 2023, it is for no other reason than the Site agreement having been terminated and access to the Home being restricted by barriers erected by Hometown;[16]
    6. He admitted to having failed to provide vacant possession of the Site;[17]
    7. He had not abandoned the Home on the Site;[18] and
    8. He wished to live in the Home on the Site;[19]
    9. Hometown had failed to establish the requisite ‘reasonable belief’ for the purposes of s 52(2) of the MH Act.[20]
  12. [17]
    Therein he sought orders that:[21]
    1. Hometown’s application be dismissed; and
    2. Hometown remove the barricades, reconnect the utilities, and enter into a new site agreement with him in his individual capacity (as distinct to executor of his mother’s estate)
  13. [18]
    In the alternative, he stated therein that if the Tribunal were to find that the Home had been abandoned and that it decided to make a sale order he sought certain conditions be applied to any such sale order (the Respondent’s Proposed Further Orders).[22]
  14. [19]
    Lastly, he also requested that this proceeding be determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).[23]
  15. [20]
    On 8 March 2024, this Tribunal gave directions inter-alia for the filing of statements of evidence, and that unless Hometown requested an oral hearing its application would be determined on the papers.
  16. [21]
    On 4 April 2024, Hometown provided further submissions, including a reply to Mr Harrison’s response of 9 February 2024. Therein, whilst it expressly maintained that it sought the orders requested in its original application, it proposed an alternative to the Respondent’s Proposed Further Orders, such being in terms of; the appointment of a valuer to determine the value of the Home on the Site, the parties entering into a selling authority for the Home, and consequential orders. (the Applicant’s Proposed Further Orders). Hometown also stated therein that it sought an in-person hearing.[24]
  17. [22]
    On 21 April 2024, Mr Harrison sent an e-mail to the Tribunal Registry wherein:[25]
    1. He stated he did not intend to file any further material; and
    2. He consented to the Applicant’s Proposed Further Orders.
  18. [23]
    On 27 May 2024, noting the time it would require before an in-person hearing could be conducted, this Tribunal gave a direction for Hometown to notify the Tribunal and Mr Harrison whether it maintained its submission for requiring an in-person hearing.
  19. [24]
    On 21 June 2024, Mr Harrison filed an Application for Miscellaneous Matters requiring orders for Hometown to comply with previous directions given, namely for Hometown to have filed and served any reply to Mr Harrison’s statements and further submissions which were required by 21 April 2024.
  20. [25]
    On 25 June 2024, Hometown filed its submissions in response to the Directions of 27 May 2024. Therein it stated it was open to the matter being determined on the papers although stating therein conditions it sought to impose on such occurring. These were that it be determined before the end of the 2024 calendar year, that neither party be permitted to file any further material, and that Mr Harrison’s stated consent to the Applicant’s Proposed Further Orders be taken into consideration. It also provided submissions in response to the Tribunal’s directions for same as to the Tribunal’s power to make the Applicant’s Proposed Further Orders.[26]
  21. [26]
    It is against that background and the filing of the material I have noted herein that this matter came before me for determination on the papers.

Mr Harrison’s Application for Miscellaneous Matters

  1. [27]
    Before embarking on a discussion of the substantive issues in this proceeding, it is convenient to dispose of Mr Harrison’s Application for Miscellaneous Matters, save that it might otherwise remain on the Tribunal file having not been addressed.[27]
  2. [28]
    Mr Harrison sought an order for Hometown to file a reply to his submissions, such being said to be direction to Hometown found at Direction 3 of this Tribunal’s Directions of 8 March 2024. It was for Hometown to reply to any further submissions he might make in satisfaction of Direction 2 therein. However Mr Harrison did not file any such further submissions, but rather he informed the Tribunal on 21 April 2024 that he would not be filing any further material. Accordingly there was nothing for Hometown to reply to. That being so, Mr Harrison’s Application for Miscellaneous Matters is simply without any merit or purpose. Accordingly I made an order dismissing it.

The Issues in this Proceeding

  1. [29]
    It is common ground that:
    1. the Site Agreement was terminated on 2 August 2023;
    2. the Home had not been earlier sold or removed;
    3. the Home was vacated on that day and has remained unoccupied since then;
    4. vacant possession of the Site was not given to Hometown on 2 August 2023; and
    5. the Home remains located on the site.
  2. [30]
    Whilst that common ground is of itself a factor in this proceeding, the subject matter of the Consent Orders as I have noted them in paragraph [10] herein loom large in consideration of the primary issue in this proceeding, such being whether the Home has been abandoned for the purposes of the MH Act. What then flows from the decision on that primary issue is what are the orders which should arise if the decision is in Hometown’s favour. In that regard the Applicant’s Proposed Further Orders become relevant, particularly given Mr Harrison’s express consent to same.

The Relevant Statutory Law

  1. [31]
    The provisions of the MH Act relevant to the issues in this proceeding are:[28]

Part 8 Abandonment of manufactured homes

52 Abandonment order

  1. Subsection (3) applies if the park owner under a site agreement reasonably believes the home owner has abandoned the manufactured home positioned on the site.
  1. Subsection (3) also applies if the park owner under a terminated site agreement reasonably believes the home owner under the agreement has abandoned the manufactured home positioned on the site.
  1. On application by the park owner, the tribunal may make an order (the abandonment order) declaring that the home owner has abandoned the home and the day the home was abandoned.
  1. The following provisions have effect on the day stated in the abandonment order as the day the home was abandoned—
  1. the home owner is taken to have abandoned the home;
  1. unless the agreement is a terminated site agreement, the agreement is taken to have been terminated.
  1. In deciding whether to make the abandonment order, the tribunal may have regard to the following—
  1. whether site rent payable under the agreement is unpaid;
  1. whether the home is unoccupied and neglected;
  1. whether the agreement has already been terminated under part 6;
  1. whether the home owner’s mail is being collected;
  1. reports from neighbours of the home owner, or from other persons, about the whereabouts or absence of the home owner;
  1. whether utilities supplied to, or used at, the home have been disconnected;
  1. whether the home owner’s personal effects have been removed from the home;
  1. anything else the tribunal considers relevant.
  1. In conjunction with the abandonment order, the tribunal may do any of the following—
  1. by order (a sale order), authorise the park owner, in the way and on any conditions stated in the order, to sell the home or the home owner’s personal effects in the home or on the site;
  1. order the home owner to pay to the park owner any amount payable under the agreement up to the day the agreement is taken to have been terminated under subsection (4)(b) (the termination payment);
  1. make any other order the tribunal considers appropriate.
  1. ….
  1. ….

…

  1. In this section—

terminated site agreement means a site agreement terminated under part 6, division 3.

53 Sale of home or personal effects

  1. This section applies if, under a sale order, a park owner is authorised to sell a manufactured home positioned on a site or a home owner’s personal effects.
  1. ….
  1. ….
  1. The park owner must not sell the home or personal effects to a prohibited unless the tribunal authorises the sale under subsection (5).

…

  1. On application by the park owner, the tribunal may make an order authorising the park owner to sell the home or personal effects to a prohibited person on the conditions, if any, stated in the order.
  1. In this section—

associate, of the park owner, means an employee or relative of the park owner.

prohibited person means the park owner or an associate of the park owner.

relative, of the park owner, includes someone connected to the park owner by a spousal relationship or step-relationship.

54 Proceeds of sale

  1. This section applies if, under a sale order, the park owner sells a manufactured home or a home owner’s personal effects.
  1. The proceeds of the sale must be applied as follows—
  1. first, if there is an amount owing to a person under a security interest registered for the home or personal effects under the Personal Property Securities Act 2009 (Cwlth)—in payment of the amount owing under the security interest;
  1. second, in payment of the reasonable costs of selling the home, or removing, storing and selling the personal effects;
  1. third, in payment to the park owner of the amount of any termination payment;
  1. fourth, in payment of any balance to the home owner or, if the home owner can not be located, to the public trustee within 10 days after the sale.
  1. The public trustee must pay an amount received under subsection (2)(d) into the unclaimed moneys fund (the fund) kept under the Public Trustee Act 1978.

55 Payment of after-termination rent

  1. This section applies if—
  1. a site agreement is taken to have been terminated under section 52(4)(b); and
  1. under a sale order, the park owner sells the manufactured home positioned on the site or the home owner’s personal effects; and
  1. under section 54(3), the public trustee pays proceeds from the sale into the fund.
  1. On application to the tribunal by the park owner, the tribunal may make an order conferring on the park owner an entitlement to receive an amount paid into the fund under section 54(3), decided by the tribunal, on account of after-termination rent.
  1. On making the application, the park owner must demonstrate to the tribunal that the park owner—
  1. acted as soon as is reasonably practicable to sell the home or personal effects; and
  1. otherwise took all reasonable steps to mitigate the park owner’s loss of site rent that would have been payable under the agreement if it were still in force.
  1. In deciding whether to make the order, or if it decides to make the order, in deciding the amount the park owner is entitled to receive, the tribunal must take into account the extent to which the park owner has complied with subsection (3).
  1. In this section—

after-termination rent means the total of site rent that would have been payable under the agreement, if it were still in force, from the day the agreement is taken to have been terminated under section 52(4)(b) until the day the home or personal effects are sold.

The Contest between the Parties

  1. [32]
    The primary issue was whether the Home had been abandoned for the purposes of being able to make an ‘abandonment order’ under s 52(3) of the MH Act. Hometown said it had. Mr Harrison said it had not.
  2. [33]
    The resolution of that contest fell to be decided by a consideration of the relevant criteria as laid out under s 52(5) of the MH Act. Each party addressed this criteria in their respective submissions. I do so in turn later in these reasons. But before doing so there were two issues arising on the submissions from Mr Harrison that I considered necessary to deal with as threshold issues which I do so here. 

Mr Harrison’s involvement in this proceeding

  1. [34]
    The first issue concerned the capacity in which Mr Harrison made submissions within these proceedings and the content of many of those submissions.
  2. [35]
    As I noted it in paragraph [9] herein, on the material before me it was common ground that Ms Harrison passed away in 2019 and that Mr Harrison then became the executor of her estate, and it was in that capacity he participated in this proceeding as respondent. Related to that is what I noted in paragraph [16] herein, namely that Mr Harrison asserted to having become the owner of the Home on 14 September 2019, such which I infer is the date of passing of Ms Harrison, on the basis he was the sole beneficiary of his mother’s estate and that he wished to live in the Home on the Site. As I understood the purpose of those submission, it was to show he could not be considered to have abandoned the Home.
  3. [36]
    However it is from these submissions that a concern arose for me. On the material in the file as it has been sent to me, in particular in terms of the parties’ respective submissions to which I have referred as marked Exhibits in the proceeding, there is nothing to show me, other than assertions of that fact contained in submissions from Hometown and Mr Harrison, that it is fact Mr Harrison was the appointed executor, that he was the sole beneficiary, and so in turn became the owner of the Home. That is, on the material before me there is an entire absence of any evidence to show that Mr Harrison became the relevant ‘home owner’ as that term is used in s 8 of the MH Act.
  4. [37]
    In its submissions, Hometown refer to “… the Will and Supreme Court letter dated 22 October 2019 …”,[29] but a copy of those documents did not form part of its material. Nor did Mr Harrison provide a copy of Ms Harrison’s will, nor has a copy of an Order of Probate been provided. As best I can identify it by conducting my own search of the Queensland Court’s file via an electronic search, it is that on 22 October 2019 an application was made to the Queensland Supreme Court for registration of probate and renunciation in terms of a deceased named as ‘Laurel Lee Harrison’, the renunciant being named as ‘Pauline Marie Sinclair’, but that no orders having been made in terms of that application.[30] From that I infer that Ms Sinclair was a named executor under Ms Harrison’s will and that she did not wish to act in that capacity.
  5. [38]
    However that does not show me that Mr Harrison was a properly appointed executor.
  6. [39]
    That being so, as I read and considered the material on the file, I inferred it to have been common ground, or one either previously established with certainty before the Tribunal or otherwise adopted by the Tribunal as being the case, that these facts are correct. In the absence of anything to the contrary and no submissions made which raised it as an issue in this proceeding, I proceeded on the same basis. However that being said, for the sake of completeness I make these additional observations here.
  7. [40]
    There was nothing put before this Tribunal to show that upon purportedly becoming the owner of the Home on the passing of his mother, as he asserts to be the case, that he took steps to have the Site Agreement made effective in his name and thus in his personal capacity. Accordingly, the role Mr Harrison took in this proceeding was at all times as the executor of his mother’s estate, the relevant assets being the Home and in turn the entitlements / obligations under the Site Agreement and the Consent Orders. Thus, at its highest he became the ‘home owner’ for the purposes of s 8 of the MH Act to the extent it being ‘the personal representative of a deceased individual’ as that phrase appears in s 8(1)(c) of the MH Act.[31]
  8. [41]
    That being so, to the extent he asserted that he had lived in the Home as his principal place of residence up to the date of termination of the Site Agreement, and that he maintained a desire to continue to do so, I did not place any weight on such submissions. In my opinion they were irrelevant to his role as the respondent in this proceeding in the conduct of his function as executor.

The caselaw relied on by Mr Harrison

  1. [42]
    In his submissions, at various times he referred to and relied on two decisions of this Tribunal, namely Wadley Properties No 1 Pty Ltd v Davis (No 2) [2012] QCAT 545 (Wadley),[32] and Village Gardens Pty Ltd v Ruth Beekhuysen [2023] QCAT 140 (Beekhuysen).[33]
  2. [43]
    Hometown submits that neither of these decisions assist Mr Harrison.[34]
  3. [44]
    I agree with Hometown. Whilst Wadley has some factual similarities to the present proceeding that is not enough to make it a decision which I should follow. Therein orders had been given which had the effect of terminating a site agreement requiring vacant possession to be given, such similar to the Consent Orders in this proceeding. But those orders also contained a mechanism which permitted Ms Davis to have her manufactured home move to another residential park at the cost of Wadley, the owner of the park in which the home was located and in terms of which the site agreement was terminated. It was that mechanism which was the substance of the Tribunal’s reasoning and decision in Wadley, such being an application under the QCAT Act for the renewal of the earlier order, such being necessary because Wadley could not comply with the order for relocation given Ms Davis had failed to provide details of a new park to which the home was to be relocated which once done would thus have effected vacant possession. But in seeking that renewal order Wadley also sought it be made an abandonment order.
  4. [45]
    That mechanism is not contained in the present proceeding, and so to that extent Wadley is distinguishable. But moreover it is the manner in which the issue of an abandonment order was dealt with which also makes it distinguishable and so of no assistance to Mr Harrison. To the extent that the reasons of the learned Member therein discuss Wadley’s efforts to obtain an abandonment order, there are two relevant aspects of it relied on by Mr Harrison.
  5. [46]
    Firstly, Mr Harrison refers to the comments by the learned Member as to site rent being fully paid, and the question of whether Wadley reasonably believed Ms Davis had abandoned the manufactured home noting the absence of an expression of such belief and its pressing its case on what it asserts was a ‘deemed abandonment’.[35]
  6. [47]
    Secondly, the Member discusses that Wadley’s efforts were misguided in that it applied for a renewal of the earlier order but simultaneously sought to have it changed so it was effectively expressed as an abandonment order, such being on the assertion of a ‘deemed abandonment’ resulting from the termination order and Ms Davis’s failure to have complied with its terms such that in turn Wadley could not comply with its obligations to relocate the manufactured home.
  7. [48]
    In that regard the learned Member expressed this conclusion:[36]

It is the Tribunal’s view that an abandonment order requires a positive finding that Ms Davis has abandoned her manufactured home on the site and it is not one that can be made on a deemed basis where a termination order has been made, to facilitate Wadley Properties regaining vacant possession of the site. Therefore the Tribunal is unable to make the changed order requested by Wadley Properties and the Tribunal will make the same final decision it made when the proceeding was originally decided.

If Ms Davis does abandon the manufactured home then an application can be made under section 52 of the Manufactured Homes (Residential Parks) Act 2003. If it is necessary to otherwise enforce the Tribunal’s order then an application could be made to the Supreme Court of Queensland under section 132 of the Queensland Civil and Administrative Tribunal Act 2009.

  1. [49]
    Mr Harrison expressed a reliance on this passage, submitting:[37]

… it is not appropriate for Hometown to use an abandonment application as a new mechanism for seeking vacant possession of the site. … This Application is not the appropriate vehicle for the Applicant to seek to enforce a previous decision relating to termination of my site agreement and vacant possession.

  1. [50]
    But that is not what Hometown was doing in this preceding. Unlike the park owner in Wadley, here Hometown had taken the requisite step of applying to this Tribunal for an abandonment order, the Consent Orders not containing an equivalent to the mechanism in Wadley that if satisfied by the requisite conduct of Ms Davis that was lacking would have resulted in vacant possession being obtained. Thus, in Wadley an abandonment order was not required, relevant relief being open to the park owner via steps under s 132 of the QCAT Act to proceed in the Supreme Court seeking an order for specific performance in terms of the nomination of an alternative park to which Ms Davis’s home could have been transferred.
  2. [51]
    In terms of Beekhuysen, Mr Harrison made these submissions:[38]

… In Beekhuysen, amongst other things, the park owner sought an abandonment order. Member Olding did not consider it appropriate to make an abandonment order because the execution of transfer forms and purported sale was inconsistent with an intention to abandon the home.

The decision in Beekhuysen illustrates that a purported sale of [a] (sic) manufactured home and assignment, even in the absence of a park owner’s consent, is sufficient to render an abandonment order inappropriate. I submit that my similar attempts to sell the manufactured home as set out in this response sufficiently demonstrates that my intentions are inconsistent with the home being abandoned.

  1. [52]
    I return to Mr Harrison’s submissions as to his asserted ‘similar attempts’ later in these reasons, here making this observation which is sufficient to explain my conclusions on the relevance of Beekhuysen. There was no evidence from Mr Harrison of any equivalent circumstances as they existed in that matter. At best, Mr Harrison made bare assertions as to an alleged sale of the Home to a Mr Karipidis.[39] He did not provide a copy of any contract of sale signed by Mr Karipidis or any other documentation to support the assertion. For that reason Beekhuysen is distinguishable on its facts.
  2. [53]
    Additionally, to the extent the learned Member in that matter indicated it was not appropriate to make an abandonment order, the observation was expressed as being “not appropriate at this stage” not only because of the presence of executed transfer forms, but because of the absence of any engagement by Ms Beekhuysen or any other person on her behalf with the Tribunal in the proceeding, thereby together suggesting she would not object to an assignment of the relevant site agreement to the new purported owner. But moreover that was no evidence before the Tribunal of the other relevant criteria for abandonment to be found. These are not circumstances that existed in the proceeding before me. 
  3. [54]
    For these reasons, the decisions in Wadley and Beekhuysen are not authority for the arguments Mr Harrison made and they did not assist him. I did not follow them. I did not have further regard to either decision.

Has the Home been abandoned ?

  1. [55]
    The terms ‘abandon’ or ‘abandonment’ are not defined in the MH Act. Nor were they terms used in the legislation which preceded, and was superseded by, the MH Act namely the Mobile Homes Act 1989 (Qld).
  2. [56]
    A similar situation exists with the Working with Children (Risk Management and Screening Act) 2000 (Qld) (the WWCA) and the use therein of the term ‘exceptional case’ when considering whether a person should be given a ‘Working with Children Clearance’. In the absence of a statutory definition to that term, it has been said that it thus creates a degree of complexity in matters such as applications of that type, and in order to deal with that complexity it requires consideration of fact and degree. In my opinion the same can be said about the MH Act and the issue of abandonment.
  3. [57]
    For that reason, the manner in which the issue under the WWCA has been dealt with in this Tribunal and the Appeal Tribunal is instructive in terms of giving an effective interpretation to the MH Act.
  4. [58]
    As it was observed by the Appeal Tribunal in Commissioner for Children and Young People and Child Guardian v FGC in reference to the predecessor legislation to the WWCA:[40]

It is to be accepted that phrases like ‘exceptional case’ must be considered in the context of the legislation which contains them, the intent and purpose of that legislation, and the interests of the persons whom it is here, quite obviously, designed to protect: (sic) children.

…

We accept that the phrase is to be read in the particular context of the legislation in which it occurs, but are not persuaded that the legislature intended to give it a meaning which was special, or unusual. It is a term of common use in everyday language. The proper approach to it is that, with respect, adopted by Philippides J: to consider its application in each particular case, unhampered by any special meaning or interpretation.

  1. [59]
    Such was later confirmed once again by the Appeal Tribunal in Commissioner for Children and Young People and Child Guardian v Eales,[41] wherein it also noted the observations of the Queensland Court of Appeal in Commissioner for Children and Young People and Child Guardian v Maher[42] wherein the Court confirmed that the Tribunal could, on the facts before it in terms of what in that type of matter were considered to be ‘protective factors’, readily filed that an exceptional case existed when having regard to and being satisfied about the criteria as specified in the Act. That criteria is that which is now set out in s 226(2) and s 228(2) of the WWCA.
  2. [60]
    It is that reasoning that is of assistance in the interpretation of the MH Act in respect of the question of abandonment. As I noted it earlier, the issue of abandonment did not arise in the Mobile Homes Act. It was introduced via the MH Act. The Explanatory Notes to the Manufactured Homes (Residential Parks) Bill 2003, the Bill from which the MH Act ultimately arose, includes the following commentary which in my opinion is relevant to interpreting the word ‘abandonment’:
    1. It describes Clause 52, that which ultimately became s 52 of the Act, in the following manner:

Clause 52 provides for the park owner to make an application to the tribunal for an order declaring that a home has been abandoned and to permit the sale of the home and any personal effects. The clause sets out what the Tribunal may consider in making the order. The park owner cannot sell the home or the personal effects unless the Tribunal has authorised this and a penalty applies to contravention of this clause.

  1. It describes the reasons for the Bill as being, in part:

An underlying problem is the basic tension between home owners and park owners largely caused by differing social and economic perspectives. Home owners are generally on low and/or fixed incomes. They have invested substantial amounts of money in purchasing homes, often for retirement purposes, and need security of tenure for the siting of the home in a residential park at a rent level commensurate with their capacity to pay. Many of these home owners have chosen this lifestyle to maintain their independence rather than seeking access to public housing. On the other hand, park owners have invested significant resources in both time and money in acquiring the land and developing their businesses. Different parks have different income and expenditure streams and park owners are not only seeking a return on their investment but also need to ensure the economic viability of their businesses. The Bill recognises these competing concerns and endeavours to provide certainty for both parties.

Essentially, the Bill retains all of the existing rights and responsibilities  of both parties and introduces new provisions to enhance home owner protection through such measures as upfront disclosure of information on the park, written contracts, new definitions, input into park rules, establishment of home owner committees, new offence provisions and access to an improved dispute resolution process. Where the parties are unable to agree on certain issues, applications may be made to the Commercial and Consumer Tribunal to make appropriate determinations.

  1. It describes the policy objectives of the Bill as being, in part:

… to regulate and promote fair trading practices in operating residential parks by:

  • declaring particular rights and obligations of the park owner and home owner for a residential park;
  • …
  • regulating:

— …;

— the sale of an abandoned manufactured home;

…

  1. [61]
    It is the last sentence in each of the two paragraphs extracted above from the Reasons for the Bill that are of assistance in determining the legislative intention behind the introduction of abandonment in meeting those policy objectives. Balance had to be created between a home owner and a park owner in circumstances, such that would allow for a mechanism where a resulting stalemate could not otherwise be resolved where a home owner was said to have abandoned the manufactured home.
  2. [62]
    As was observed in the joint judgement of the High Court in Alcan (NT) v Territory Revenue in terms of statutory construction:[43]

This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. …. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.

  1. [63]
    In my opinion it is that possibility of a stalemate and the need for a mechanism, but one which gave balance, which is the mischief that the legislature was seeking to remedy with the introduction of the abandonment provisions in the MH Act.
  2. [64]
    So was does the language employed in the text of the MH Act inform us ?
  3. [65]
    Abandon as a verb, and abandonment as a noun, are terms of common usage. To abandon something is to desert it or give up on it.[44] But when used in a legal circumstance and in the absence of any such statutory definition, whilst the adoption of those meanings are helpful, in my opinion guidance as to its meaning can be taken from the manner in which the term ‘abandonment’ is used in contract law, such being whether a contract has been abandoned by the conduct of the parties. The following is relevant in that regard.
  4. [66]
    In Summers v The Commonwealth, Isaacs J referred to the decision of the Privy Council in De Soysa v De Pless Pol (1912) A.C. 194 noting the following passage from the speech of Lord Atkinson therein at pg 202:[45]

One party to a contract is not bound to give to the other unlimited time after a day named to do that which the other has contracted to do. There must be some point of time at which delay or neglect amounts to refusal. … 

  1. [67]
    I return to that later in these reasons, in the meantime noting here that whilst that provides some guidance, similar to the WWCA the MH Act itself also provides indicia in terms of determining the question of abandonment by establishing criteria that may be considered by this Tribunal in deciding whether to make an abandonment order. This is found is s 52(5) of the MH Act. I thus now turn to that criteria.

s 52(5)(a) Whether site rent payable under the agreement is unpaid.

The Submissions

  1. [68]
    Hometown did not assert that any site rent is unpaid. However, it opened its submissions on this criterion noting the Site Agreement was terminated on 2 August 2023.[46] That very fact draws attention to the Notice of Default from which the termination was ultimately effected 90 days from the date of the Notice wherein the default which is said to have triggered that step being taken is Mr Harrison’s failure to have paid the rent due 31 March 2023.
  2. [69]
    In addressing this criterion it did however acknowledge that since 2 August 2024 Mr Harrison had been depositing amounts into its account, but says it is unable to receipt these payments in the absence of a current site agreement.[47]
  3. [70]
    Mr Harrison stated that there is no site rent unpaid, and also noted the existence of the deposits it is said he has made since 2 August 2024, such which he described as ‘site rent’.[48]

Discussion

  1. [71]
    It was entirely unclear on the material before me as to whether the unpaid March 2023 rent has since been paid. It seemed to me possible that it had, but equally it seemed possible that it was paid only after the Notice of Default was issued, or that the payment of that amount is mixed up within the deposits Mr Harrison has been making since 2 August 2024.
  2. [72]
    However what was clear to me is that this Tribunal was not inclined to make any order that the Notice of Default was not to be enforced, or was otherwise stayed, such as I have noted it in paragraphs [12] to [14] herein, from which I could readily draw the inference that the Tribunal was satisfied that as at the date of the Notice of Default site rent was unpaid.
  3. [73]
    Save only for what I have already said that it might be the case the March 2023 amount for site rent is mixed up in the continued payments, the fact of the further payments being made by Mr Harrison since 2 August 2024 does not assist him in terms of this criterion. As Hometown correctly identified it, such cannot be payment of site rent when there was no current site agreement under which rent was payable. But, given the uncertainty on the material as to whether the unpaid rent for March 2023 has been paid, whether before or after the termination date, there was insufficient material to enable me to reach a conclusion that there was a proper basis for making an abandonment order premised on this criterion.

s 52(5)(b) Whether the home is unoccupied and neglected.

Submissions

  1. [74]
    It is common ground that since the termination of the Site agreement the Home has been unoccupied.
  2. [75]
    Mr Harrison submitted that the primary reason for it being unoccupied was that the site agreement was terminated as at 2 August 2023 and in turn he vacated the Home. As to the issue of neglect, he submitted it cannot be considered that the Home was neglected. This is because he has always wished to have access to it to keep it clean and maintained, but that the presence of the barricades around it as erected by Hometown have prevented him from doing so.[49] In that regard he referred to and relied on the content of e-mails he asserted were sent to Hometown wherein he requests access to the Home.[50]
  3. [76]
    In response thereto Hometown submitted that such must be considered in the context of the Consent Orders and in turn the subsequent termination, and that he had ample opportunity to sell the Home.[51] It also makes this submission:[52]

The Applicant rejects the Respondent’s claim that the security fencing is preventing him from accessing the Site to maintain the Manufactured Home (RS[19]). Annexure 8 of the Application for Abandonment demonstrates the Respondent has been advised that access can be provided upon request. On the basis the Respondent has not taken up this opportunity, the Applicant submits the home has been neglected. …

Discussion

  1. [77]
    I did not agree with Hometown that it could be said the Home has been neglected. The e-mails to which Mr Harrison referred and provided a copy of in his response show that he had, on 13, 15, and 18 August 2023, requested access to the Home. Whilst two of these were expressed as requested for ‘unlimited access during business hours’, one of these at the very least suggested Mr Harrison required access for the purposes of doing some form of maintenance work.[53]
  2. [78]
    However I do agree with Hometown that Mr Harrison’s submissions should not be accepted as an excuse or a reason against this criterion being applied in determining whether an abandonment order should be made. Even though Mr Harrison argued that the Home was unoccupied as a result of the Site Agreement being terminated, and that he was effectively denied access to carry out maintenance work or otherwise have unlimited access during business hours, such argument does not have any substance and cannot be given any weight in the circumstance that Mr Harrison consented to the termination should he have defaulted in doing that which he consented to do, all as laid out in the Consent Orders.
  3. [79]
    Thus, to the extent the house was unoccupied, it was of his own making. Similarly, to the extent he was denied ‘unlimited access’ it was of his own making. As to the issue of thus not able to carry out the asserted purported maintenance work, put simply there was no premise for, or utility in, such work being performed because he had consented to giving vacant possession should the Home not otherwise have been sold.
  4. [80]
    All this being said, I found this criterion as established for the purposes of deciding the issue of abandonment to the extent it could be said the Home was unoccupied.

s 52(5)(c) Whether the agreement has already been terminated under part 6.

Submissions

  1. [81]
    As I noted it earlier herein, it was common ground that the agreement for the rental of the Site had been terminated. Moreover, Mr Harrison had sought to have the termination set aside but this Tribunal in an earlier proceeding had dismissed that action.[54] No further challenge was made in this proceeding by Mr Harrison that the termination could not be relied on as a termination under Part 6 of the MH Act for the purposes of this criterion.
  2. [82]
    Mr Harrison sought to diminish the weight of this criterion by reliance of the decision in Wadley arguing that he should not be deemed to have abandoned the Home on the basis of the agreement having been terminated.[55]

Discussion

  1. [83]
    I have already discussed Mr Harrison’s argument and rejected it earlier in these reasons. Moreover, it is not an issue of deeming abandonment. The issue was whether I could find, on all the evidence and submissions before this Tribunal, that on the balance of probabilities Mr Harrison, in his capacity as Executor of his mother’s estate and thus the home owner for the purposes of the Act, had abandoned the Home.
  2. [84]
    Given the common ground, I found this criterion as established for the purposes of deciding the issue of abandonment to the extent it could be said the Site Agreement was terminated.

s 52(5)(d) Whether the home owner’s mail is being collected.

Submissions

  1. [85]
    It is common ground that Mr Harrison had visited the Park to collect his mail after the termination date, but that since he has arranged for his mail to be redirected to an alternative address.[56] But Mr Harrison argued the reason for this is that he is unable to live in the Home for the same reasons he gave as to why the Home was unoccupied, and so once again it should not be a reason for finding the Home as having been abandoned.[57]

Discussion

  1. [86]
    For the same reasons I gave in terms of the criterion as to the Home being unoccupied, that being as I discussed it in paragraphs [78] and [79] herein, to the extent he has been required to or otherwise decided to have his mail redirected it was of his own making.
  2. [87]
    All this being said, I found this criterion as established for the purposes of deciding the issue of abandonment to the extent it can be said the home owner’s mail is no longer being collected.

s 52(5)(e) Reports from neighbours of the home owner, or from other persons, about the whereabouts or absence of the home owner.

Submissions

  1. [88]
    It is common ground that Mr Harrison, as the effective home owner in his capacity as executor, is residing in a property outside of the Park.[58] Mr Harrison however once again sought to argue that the reason he lives elsewhere is the termination of the Site Agreement, and not because he has abandoned the Home.[59]

Discussion

  1. [89]
    Once again, Mr Harrison’s argument is one I have already rejected as being valid for the purposes of dispelling weight to be attributed to a particular criterion. But, even though I have rejected it as being a valid issue in terms of the question of abandonment, although the precise location of where Mr Harrison now resides is not known to Hometown or otherwise disclosed by Mr Harrison, it is not the case that his whereabouts are unknown or that he is entirely absent from contact.
  2. [90]
    Notwithstanding he lives elsewhere, he has readily participated in this proceeding and it is readily apparent that he has been contactable and has responded to contact to him as the respondent. In my opinion that carried some weight to suggest an absence of abandonment. In that regard I noted the definition of a home owner under the MH Act includes a person whether or not that person occupies the home as the person’s principal place of residence.[60]
  3. [91]
    For these reasons I found this criterion as not having been established for the purposes of deciding the issue of abandonment.

s 52(5)(f) Whether utilities supplied to, or used at, the home have been disconnected.

Submissions

  1. [92]
    It is common ground that the utilities to the Home were disconnected on 4 August 2023, and that Hometown informed Mr Harrison on 3 August 2023 that this was going to occur.[61] There is nothing in the material before the Tribunal to show, or even suggest, that Mr Harrison challenged this decision and action by Hometown.
  2. [93]
    At its highest, Mr Harrison asserted he made requests of Hometown on 11 and 15 August 2023 for electricity to be reconnected to the Home for the purposes of sale of the Home.[62] Hometown responded to this simply saying that disconnected utilities do not affect his ability to sell the Home.[63]

Discussion

  1. [94]
    In the absence of that challenge by Mr Harrison, I draw the inference he acquiesced to the disconnection of the utilities.
  2. [95]
    Moreover, Mr Harrison had not provided any evidence that the absence of electricity, or any other utility that may have been previously connected to the Home, adversely affected him in some way as the home owner for the purposes of the MH Act. Nor did he show any meaningful effort having been made, with a relevant strong reason given to support it, to have the utilities reconnected.
  3. [96]
    For these reasons, in the presence of the common ground of disconnection on 4 August with notification the day prior and no immediate or otherwise prompt challenge by Mr Harrison to Hometown’s decision to disconnect, and his acquiescence in that having occurred, in all respects I found this criterion sufficiently satisfied to support a finding that the Home has been abandoned.

s 52(5)(g) Whether the home owner’s personal effects have been removed from the home.

Submissions

  1. [97]
    Hometown submitted that Mr Harrison had collected personal effects from the Home on 11 and 15 August 2023.[64] Mr Harrison confirmed this as being correct saying he did so because of the termination of the Site Agreement, but asserted that some of his personal effects remain in the Home.[65]
  2. [98]
    In terms of that last submission, Hometown argued that this is evidence Mr Harrison has not made a genuine attempt to provide vacant possession of the Site, and moreover that it is evidence he had no intention to do so.[66]

Discussion

  1. [99]
    The fact that Mr Harrison has left some personal effects in the Home weighs against a finding of abandonment. But the weight I gave that was reduced, effectively to nil, for the same reasons I gave earlier herein in terms of the Home being unoccupied and mail no longer being collected, such being they are circumstances of his own making. He consented to vacant possession being given following termination should he have defaulted in making the requisite payments, all as laid out in the Consent Orders. In such circumstance, his decision to not have collected all his personal effects does not lead to a conclusion that he had not abandoned the Home.
  2. [100]
    To the contrary, on the evidence that was before me from Hometown, Mr Harrison sent e-mails to Hometown twice on 5 August 2023, firstly at 3:24 am and then at 10:47 am, with an express request to access the Home “to collect my personal possessions”, on the second occasion simultaneously asserting that the Home had been sold to Mr Karipidis on 2 August 2023.[67] There is no qualification contained therein that it would only be some of his personal effects and that others were to remain in place. Moreover, the assertion of the sale of the house is contradictory to any such inference of same being drawn even if such an inference was open to be made.
  3. [101]
    I did not accept Mr Harrison’s argument against the criterion. I found this criterion  to be established for the purposes of deciding the issue of abandonment to the extent it can be said the home owner’s personal effects have been removed from the Home.

s 52(5)(h) Anything else the tribunal considers relevant.

The sale of the Home

  1. [102]
    It is under this criterion that I return to the issue of the sale of the Home as I indicated earlier in paragraph [52] herein I would do. It is also here that the relevance of the Consent Orders, and Mr Harrison’s failure to have met that which he agreed thereunder to meet such leading to the Notice of Default and termination of the Site Agreement, become prominent.
  2. [103]
    Hometown addressed this issue in a summary fashion in its original submissions asserting:

The Respondent has not demonstrated any intention of removing or selling the unoccupied Manufactured Home on the Site. …[68]

  1. [104]
    When Hometown wrote to him on 27 September 2023 noting the requirement for vacant possession and asking him to advise whether the Home was listed for sale, what efforts had been made to remove or sell the Home, and the date on which vacant possession would be given, Mr Harrison’s response on 6 October 2023 was simply “I’m seeking further Legal (sic) advice”.[69]
  2. [105]
    Mr Harrison’s response to those submissions is a description of what he said has been his attempts to sell the Home, asserting that his attempts have been hindered and interfered with by Hometown. It is here that he also relied on the decision in Beekhuysen.[70] Therein he also asserted that he requested Hometown to sell the Home for him.[71]
  3. [106]
    I do not accept Mr Harrison’s submissions as being an accurate reflection of what should have occurred once the Consent Orders were given and in turn he defaulted thereunder leading to the termination and so the requirement for vacant possession. Once again the events are of his own making. As I noted it briefly in paragraph [52] herein, there is simply no documentation contained in his material to support his assertions. I rejected his submissions as being anything I could reasonably accept as falling under this criterion in support of a finding that the Home had not been abandoned.
  4. [107]
    To the extent he asserted he requested Hometown to sell the Home for him, the copy of his e-mail of 11 August 2023 which he includes in his material in support thereof does not contain any such request.[72] At best it is an acknowledgement of a statement by a person for Hometown that Hometown would be willing to sell the House and seeking confirmation of same.
  5. [108]
    His submissions seeking to explain his efforts to sell the house, a purported sale which was not completed because of an asserted absence of Hometown having provided the requisite disclosure notice, and his asserted agreement with Hometown for it to sell the house, were all entirely without substance. He had not provided any evidence of his compliance with the MH Act in terms of s 45 – Notice of proposed sale or assignment, or s 60 – Appointing park owner under selling authority,  each of which were mandatory to have been complied with in his asserted efforts to have sold the Home. Moreover, at best his own evidence was that:
    1. He accepted the evidence provided by Hometown that:
      1. As at 2 August 2023 4:57 pm and then again at 7:20 pm that he informed Hometown of his intention to sell the Home.[73]; and
      2. As at 5 August 2023 10:47 am he purports to have sole the Home to Mr Karipidis.
    2. As at 11 August 2023 he was preparing to sell the Home.[74]
    3. As at 13 August 2023 at 5:45 am the “verbal agreement to purchase my Home has fallen through.”[75]
    4. As at 7:55 am on 15 August 2023 he had a ‘house inspection’ that day, which I infer was in terms of his asserted efforts to sell the Home;[76] and
    5. As at 11:12 am on 29 August 2023 he had had a discussion with a person in the Real Estate Division of Lloyds Auctioneers and Valuers as to the possibility of listing with them the Home for sale.[77]
  6. [109]
    As to Mr Harrison’s assertion of the sale to Mr Karipidis, Mr Burroughs for Hometown provided a statement, which Hometown filed in this proceeding, wherein he provides details of his communications with Mr Karipidis subsequent to the notifications to Hometown on 2 and 5 August 2023 to which I have just referred. As he described it therein, whilst he had a conversation via phone with Mr Karipidis on 10 August 2023 in terms of the asserted sale, obtaining from him what is said to be an oral confirmation of a signed contract of sale and payment for same, despite follow up correspondence from Mr Burroughs to Mr Karipidis that same day he did not hear or receive anything further from Mr Karipidis.[78]
  7. [110]
    Additionally, the following is relevant, it being as pointed out by Hometown in its responsive submissions, such being conduct by Mr Harrison subsequent to the Notice of Default having been issued and his failed efforts of 20 July 2023 to have an order given in this Tribunal that it not be enforced. Such must be considered in conjunction with those facts as noted in paragraph [108] herein in terms of his asserted attempts to sell the Home, namely his application on 1 August 2023 and its dismissal on 2 August 2023 as I noted them in paragraphs [12] and [13] herein.[79]
  8. [111]
    In all respects, the absence of any probative evidence from Mr Harrison as to his asserted efforts to sell the Home, and the fact that the circumstances he is now in are, as I have mentioned on several occasions already in these reasons, such of his own making. Thus I was left but with one conclusion. Mr Harrison’s conduct is consistent with a home owner simply having abandoned a manufactured home but whilst also taking steps, in some last ditch effort, to try to hang on to the home or alternatively to just frustrate the process of the park owner being able to effectively obtain vacant possession of the site. If Mr Harrison was serious about selling the Home and meeting the obligations he had consented to via the Consent Orders, but found himself in circumstances that he was simply unable to follow through with that, all he had to do was proceed as he was entitled to do under s 60 of the MH Act and appoint Hometown by way of a selling authority in the approved form to sell the Home. It was incumbent upon him to have done so given that which he had agreed to in the Consent Orders and subsequently that which arose because of his default by way of the Notice of Default and subsequent termination of the Site Agreement. But he did not do so.
  9. [112]
    In the circumstances as I have discussed them herein, such is evidence of conduct consistent with abandonment.

The question of Hometown’s reasonable belief under s 52(2)

  1. [113]
    Related to the test for abandonment as laid down in the criteria under s 52(5) is that provided for in s 52(2) of the MH Act, namely that the park owner holds the reasonable belief that the manufactured home has been abandoned.
  2. [114]
    Mr Harrison submits that Hometown had failed to establish that reasonable belief, and so accordingly its application for an abandonment order should be dismissed.[80] Hometown did not respond to this in its reply submissions, nor did it expressly address it in its original submissions.

Discussion

  1. [115]
    Notwithstanding that Hometown did not directly address this aspect of the legislation nor in any way make a submission that it believed the Home to be abandoned, on any reading of the entirety of Hometown’s extensive submissions in this proceeding the only conclusion that can be reached is that it did hold such a belief. As it submitted in the closing paragraph of its original submissions:[81]

The site agreement has been terminated, the personal effects have been removed from the Manufactured Home, Utilities are not supplied to the Site, and the Respondent does not reside in the Manufactured Home on the Site in the Park. Accordingly, for the purpose of the Act the home has been abandoned.

  1. [116]
    For these reasons, I did not accept Mr Harrison’s submission that Hometown failed to establish that it held that requisite belief. There is no prohibition arising from s 52(2) of the MH Act to Hometown having proceeded under s 52(3) to apply for an abandonment order.

The question of Mr Harrison’s human rights being contravened

Submissions

  1. [117]
    Mr Harrison argues that his rights under s 24 and s 25 of the Human Rights Act 2019 (Qld) (the HRA) must be considered, seemingly asserting that they have been contravened. As he has presented that argument, these are:[82]
    1. Under s 24 – his right not to be arbitrarily deprived of his property; and
    2. Under s 25 – not to have his privacy, family, home … unlawfully or arbitrarily interfered with.
  2. [118]
    Hometown responded to this argument succinctly submitting that Mr Harrison has not demonstrated any interference with his human rights.[83]

Discussion

  1. [119]
    The main objective of the HRA is to protect and promote fundamental human rights. However the rights listed therein are not exclusive, nor are the rights protected thereunder absolute. They may be limited, but only as far as is reasonable and justifiable.  That being said, all statutory provisions, as far as is possible consistent with their purposes, must be interpreted in a way that is compatible, or most compatible, with human rights.  Such includes the MH Act.
  2. [120]
    As is expressly provided for in the HRA, a human right may be subject only to reasonable limits, and in deciding whether a limit is reasonable and justifiable relevant factors include inter-alia the nature of the human right, the nature and purpose of the limitation, whether there are any less restrictive and reasonably available ways to achieve the purpose, the importance of the purpose of the limitation, the importance of preserving the human right, taking into account the nature and extent of the limitation on the human right, and the balance between the last two points.
  3. [121]
    But notwithstanding these aspects of the HRA which suggest his rights must be considered, there are two fundamental issues with Mr Harrison’s argument which weigh against it.
  4. [122]
    Firstly, any interference that might occur should I make the requested abandonment order and so what could give rise to a limitation on his rights would not be arbitrarily nor unlawfully imposed. This is because such would arise as a direct result of the circumstances he himself caused to arise and the operation of the Consent Orders to which he agreed, such being considered and dealt with in accordance with the MH Act. That outcome is not only consistent with the MH Act but it is not incompatible with the express provisions of s 24 or s 25 of the HR Act.
  5. [123]
    Secondly, it must not be overlooked that Mr Harrison’s rights are not in issue. He did not participate in this proceeding, and in turn be subject to any abandonment order that may be made, in his personal capacity. As I discussed it earlier herein, his involvement is as executor to the estate of his late mother. Thus, if any human rights are the subject of any abandonment order, it would be his mother’s rights to the extent they remained applicable to her estate. In the alternative, at its highest it would be his rights as sole beneficiary if in fact he was such, but which I have already discussed has not been established on the evidence.
  6. [124]
    Even if I am wrong about those last observations, in my opinion for the reasons I discussed in paragraph [122] herein the making of an abandonment order in this proceeding would not be an infringement of Mr Harrison’s human rights. Moreover, the decision I have reached in this proceeding is entirely consistent with the HRA given the permissible limiting factors that can be imposed when interpreting and applying other relevant statutes.

Conclusion on the question of abandonment

  1. [125]
    Hometown effectively concluded its submissions with the following statement:

It is not the Applicant’s fault that the Respondent has ultimately triggered his own circumstance in this matter. The Respondent has had ample time to sell the Manufactured Home prior to the termination date …

  1. [126]
    I agree with that statement. All of Mr Harrison’s conduct, as I have discussed it herein in terms of the relevant criteria related to the question of abandonment, is in my opinion consistent with not only the dictionary definition of ‘abandon’ which I discussed in paragraph [65] herein, but also consistent with the passage from the speech of Lord Atkinson De Soysa v De Pless Pol (1912) A.C. 194 to which I referred in paragraph [66] herein. For that reason I was readily able to conclude that the abandonment order Hometown sought should be made. This was so even though some of the criterion had not been met as I discussed it earlier in these reasons.
  2. [127]
    The introduction of the ability for such an order created the mechanism to remedy a situation which could arise between a home owner and a park owner, the manifestation of such is what has occurred between Hometown and Mr Harrison. It provides at least one way in which the requisite balance as I discussed it earlier herein with reference to the Explanatory Notes to the Bill from which the MH Act was enacted can be achieved.

What are the relevant orders ?

  1. [128]
    For all of the reasons I have discussed in the preceding paragraphs, the orders Hometown sought be made under s 52(3), namely the abandonment order, and in turn s 52(6)(a), namely the sale order, of the MH Act were made. It also followed that the order it sought be made under s 53(5) of that Act, namely that the sale may be made to a prohibited person should also be, and so was, made.
  2. [129]
    However there were two orders it sought that I did not make.
  3. [130]
    The first was an order that upon sale of the Home the proceeds were to be applied in accordance with s 54(2) of the MH Act. In my opinion no such order was necessary. The provisions of s 54(1) provides that s 54(2) of the Act apply if under a sale order Hometown sells the Home and/or the remaining personal effects.
  4. [131]
    The second was an order that Hometown be entitled to received after-termination rent pursuant to s 55(2) of the MH Act. Mr Harrison opposed such an order being made given that the requirements of s 55(1) have not been, and what he says will not be, satisfied, namely payment of the balance of the funds from the sale under s 54(3) to the Public Trustee of Queensland and in turn into a fund. Whilst I did not make any positive finding in terms of Mr Harrison’s submissions that these requirements will not be satisfied, his argument has some substance to it. Hometown's application for an order under s 55 of the MH Act is premature. Not only does it require payment to, and in turn by, the Public Trustee into a fund, something not yet done, but it also requires Hometown to have first sold the Home or the relevant personal effects, evidence that it has been unable to locate Mr Harrison for the purposes of satisfying s 54(2)(d) of the Act, and also having demonstrated to this Tribunal that which it must do under s 55(3) of the MH Act¸ all of which are cast in the language of conduct that it has not as yet engaged in. For this reason I did not make an order for payment of after-termination rent.
  5. [132]
    That left only the Applicant’s Proposed Further Orders as I noted them in paragraphs [21], [22](b), and [25] herein. 
  6. [133]
    As it was directed to do, Hometown filed submissions in terms of where this Tribunal’s power to make such orders is found.[84] In doing so it referred to and seemingly relied on both s 52(6) and s 117 of the MH Act as the relevant source of the power.
  7. [134]
    I did not agree that s 117 is a relevant provision. Whilst it empowers this Tribunal to make orders, such which may encompass an order that it is empowered to make under a separate provision of the Act and thus theoretically s 52(6), it falls under Part 17 of the Act which is entitled ‘Resolution of residential park disputes’. Thus, as provided for in s 106 therein, it is a mechanism for resolution of a ‘residential park dispute’, such which is defined in s 14A of the MH Act the ambit of which does not include the making of an abandonment order or a sale order.
  8. [135]
    The relevant provision is s 52(6)(a), such which permits this Tribunal to impose conditions in a sale order.
  9. [136]
    As to why the Applicant’s Proposed Further Orders should be made, Hometown made these submissions:[85]

… the Respondent … and the Applicant … are in agreement to appoint an independent valuer for sale of the home.

… the inclusion in any orders for the Tribunal to appoint an independent valuer to be a practical and fair condition to ensure the sale price of the home is at market value so as not to disadvantage the Respondent by way of proceeds, and not disadvantage the Applicant through further delays.

The Applicant also considers the appointment of an independent valuer to provide comfort to both parties, avoiding further unnecessary injunctions.

  1. [137]
    I accepted those submissions as being correct. For that reason it was both proper and appropriate that the further orders be made subject to two issues arising in terms of the orders proposed.
  2. [138]
    First, I did not agree with the form of the orders as they were proposed by Hometown.[86] Subject to what I say next herein, I drafted the orders giving effect to the substance of that which was proposed by Hometown and agreed to by Mr Harrison. Second, I did not make an order as to the distribution of the proceeds of sale in the manner Hometown proposed.[87] This was for two reasons:
    1. As I discussed it in paragraph [130] herein, s 54 of the MH Act already provides for the order of priority of distributing proceeds of sale; and
    2. It sought an order for payment of ‘outstanding occupation and utility fees’, such which would ordinarily fall with a ‘termination payment’ if ordered under s 52(6)(b) of the Act, or otherwise covered by an ‘after-termination rent’ payment if ordered under s 55 of the Act. However the former was never the subject of Hometown’s application and thus has not been the subject of any evidence or submissions as to what is said to be outstanding fees, and I have already discussed in paragraph [131] herein the absence of Hometown’s entitlement to the latter.
  3. [139]
    It is on these bases that I made the requisite orders.

Conclusion

  1. [140]
    Hometown says that the learned Member of this Tribunal, who gave the decision of 2 August 2023 that Mr Harrison’s application to stay the Notice of Default was dismissed, described the issues between the parties as having a “long and torturous history”. Whilst I have not seen a transcript of the hearing in which that is said to have been stated, for the purposes of these concluding remarks I accept it at face value as having been stated.
  2. [141]
    I concur. The history of this matter is aptly described in that way. Sadly, Mr Harrison has taken an approach to the issues, whether out of emotional desire to hold on to the Home or simply being entirely misguided in his efforts, such that it has been unnecessarily drawn out. Solutions were readily available to him but which he did not take up. The circumstances were of his own making.
  3. [142]
    As I saw it, Hometown was left with no alternative but to proceed as they have done so. It was entitled to the outcome which is reflected in the orders I made.

Footnotes

[1]Given this proceeding was determined on the papers, this background information was sourced from that which was filed by the parties. In order to identify from where a relevant fact, or later in these reasons a submission, was sourced, noted here is the references I have given ‘in Chambers’ to the material as I identified it, such which would ordinarily have been given in an oral hearing as relevant material was read or tendered as evidence.  Whilst my usual practice is to identify the originating application and response to it as documents ‘Marked for Identification’, in this instance I have marked them as Exhibits given the manner in which they have been presented is effectively as a set of written submissions. The dates given here are the recorded filing dates. The documents are – Ex 1 – Hometown’s original submissions 23 Nov 23; Ex 2 – Mr Harrison’s response submissions 9 Feb 24; Ex 3 – Hometown further submissions 4 Apr 24; Ex 4 – Mr Harrison’s e-mail to QCAT 21 Apr 24; Ex 5 – Hometown submissions re oral hearing 25 Jun 24.

[2]Ex 1 – pg 7.

[3]Ex 1 - para 9. The date of Ms Harrison’s passing is not specified in the material on the Tribunal file, but as I discuss it later in these reasons it appears to me it occurred on 14 September 2019.

[4]I discuss this aspect in some detail later in these reasons as a fundamental issue.

[5]Ex 1 pg 29.

[6]Ex 1 pg 25. As shown therein it is asserted that rent due 31 March 2023 had not been paid.

[7]This is as it is described by the applicant in its submissions – see Ex 1 para 15. This was in proceeding OCL 038-21, it being the same proceeding as the orders by consent were made on 20 September 2022 as referred to earlier in these reasons.

[8]This was again in proceeding OCL 038-21. A copy of the Decision of this Tribunal to that effect appears as part of Annexure 3 to Ex 1 in this proceeding.

[9]Ibid. See also FN 7 herein.

[10]Ex 1.

[11]Ex 2.

[12]Ex 2 para 8.

[13]Ex 2 para 20.

[14]Ex 2 para 9.

[15]Ex 2 para 12.

[16]Ex 2 para’s 15 to 17.

[17]Ex 2 para 9.

[18]Ex 2 para 6.

[19]Ex 2 para 43(a)

[20]Ex 2 para 6.

[21]Ex 2 para’s 48 and 49.

[22]Ex 2 para 50.

[23]Ex 2 para’s 56 and 57.

[24]Ex 3.

[25]Ex 4.

[26]Ex 5.

[27]As it was directed to do, Hometown responded to this Application within its submissions of 25 June 2024, namely Ex 5. It effectively was that it would not be making any submissions as there was no need to, given Mr Harrison had not made any submissions to respond to.

[28]I pause here to observe that the paragraphs to subsection to s 54(2) as extracted herein are not consistent with the paragraphs shown in Hometown’s submissions at Ex 1 para 6. It shows what is now paragraph (b) as paragraph (a) therein. The order of paragraphs (a) and (b) in s 54(2) were reversed under s 11 of the Manufactured Homes (Residential Parks) Amendment Act 2024 (Qld) which commenced on 6 June 2024.

[29]Ex 1 para 9.

[30]This is proceeding 11582/19. I conducted this search pursuant to s 28(3)(c) and (e) of the QCAT Act, such which permits the Tribunal to inform itself in any way it considers appropriate such that it has all relevant material before it.

[31]I pause here to also noted the definition of ‘personal representative’ under Schedule 1 of the Acts Interpretation Act 1954 (Qld) includes the executor of a deceased individual’s estate.

[32]Ex 2 para’s 14, 21 to 23, and 40..

[33]Ex 2 para 41.

[34]Ex 3 para’s 3 and 4.

[35]See Wadley Properties No 1 Pty Ltd v Davis (No 2) [2012] QCAT 545, [13] and [14].

[36]Ibid, [17] and [18].

[37]Ex 2 para’s 21 to 23.

[38]Ex 2 para’s 41 and 42.

[39]There is inconsistency in the spelling of Karapidis in the parties’ respective material. I have adopted a single spelling throughout these reasons.

[40]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [31] to [33]. Footnotes and citations omitted.

[41]Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303, [5] to [12], in reference to Commissioner for Children and Young People and Child Guardian v Maher.

[42]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.

[43]Alcan (NT) v Territory Revenue (2009) 239 CLR 27, 46-47, [47] per Hayne, Heydon, Crennan and Kiefel JJ. Footnotes omitted.

[44]Consider for example the definition in the Australian Oxford Mini Dictionary – 4th Edition – Oxford University Press 2010.

[45]Summers v The Commonwealth (1918) 25 CLR 144, 152

[46]Ex 1 para 18.

[47]Ex 1 para 18. Such is effectively repeated in Ex 3 para 5.

[48]Ex 2 para 12.

[49]Ex 2 para’s 15, 17, and 19.

[50]Ex 2 Annexure 2.

[51]Ex  3 para’s 7 and 9.

[52]Ex 3 para 11.

[53]This is in the e-mail shown to have been sent 15 August 2023 wherein he refers to an approval that had been given to replace the existing structure to the Home, requested when he could proceed with that work asserting the barricades were preventing him from doing so.

[54]See Ex 1 para 21; See Ex 2 para 20.

[55]Ex 2 para 23.

[56]Ex 1 para 22. Ex 2 para 24. Ex 3 para 15.

[57]Ex 2 para 25.

[58]Ex 1 para 23. Ex 2 para 26

[59]Ex 2 para 26. Hometown’s response to this at Ex 3 para 16 is not directly responsive and accordingly I have not given it any weight either in terms of this criterion.

[60]See MH Act s 8(1)(a) read together with s 8(2)(a).

[61]Ex 1 para 24. Ex 2 para 24.

[62]Ex 2 para 28.

[63]Ex 3 para 17.

[64]Ex 1 para 25.

[65]Ex 2 para’s 30 and 10.

[66]Ex 3 para 18.

[67]See Annexure 8 to Ex 1.

[68]Ex 1 para 26 to 29.

[69]See Ex 1 Annexure 11.

[70]Ex 2 para’s 31 to 42.

[71]This is stated in paragraph 34(b) therein.

[72]Ex 2 Annexure 4.

[73]Ex 2 para 31 in response to that contained in Ex 1 para 26 and Annexure 9 therein.

[74]Ex 2 Annexure 3.

[75]Ex 2 Annexure 2.

[76]Ex 2 Annexure 3.

[77]Ex 2 Annexure 7.

[78]Ex 3 para 20 and the statement of Mr Burroughs attached to the submissions.

[79]Ex 3 para 19.

[80]Ex 2 para 51.

[81]Ex 1 para 30.

[82]Ex 2 - para 43(f).

[83]Ex 3 – para 28. Hometown’s submission was confused in that it inadvertently referred to the Applicant, thus itself, as not having not demonstrated this, but such must be read as being in reference to the Respondent – Mr Harrison.

[84]Ex 5 para’s 6 to 8.

[85]Ex 5 para’s 9 to 11.

[86]Ex 3 para 29 (a) to (e).

[87]Ex 5 para 28(e).

Close

Editorial Notes

  • Published Case Name:

    Hometown Australia Burpengary Pty Ltd v The Executor of the Estate of the late Laurel Harrison

  • Shortened Case Name:

    Hometown Australia Burpengary Pty Ltd v The Executor of the Estate of the late Laurel Harrison

  • MNC:

    [2024] QCAT 402

  • Court:

    QCAT

  • Judge(s):

    Member Taylor

  • Date:

    20 Sep 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
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27
2 citations
Jump To
Cite 1 - (2009) 239 CLR 27
Cite 2 - (2009) 239 CLR 27
Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303
2 citations
Jump To
Cite 1 - [2013] QCATA 303
Cite 2 - [2013] QCATA 303
Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291
2 citations
Jump To
Cite 1 - [2011] QCATA 291
Cite 2 - [2011] QCATA 291
Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492
2 citations
Jump To
Cite 1 - [2004] QCA 492
Cite 2 - [2004] QCA 492
De Soysa v De Pless Pol (1912) AC 194
3 citations
Jump To
Cite 1 - (1912) AC 194
Cite 2 - (1912) AC 194
Cite 3 - (1912) AC 194
Summers v The Commonwealth (1918) 25 CLR 144
2 citations
Jump To
Cite 1 - (1918) 25 CLR 144
Cite 2 - (1918) 25 CLR 144
Village Gardens Pty Ltd v Ruth Beekhuyzen [2023] QCAT 140
2 citations
Jump To
Cite 1 - [2023] QCAT 140
Cite 2 - [2023] QCAT 140
Wadley Properties No 1 Pty Ltd v Davis (No 2) [2012] QCAT 545
3 citations
Jump To
Cite 1 - [2012] QCAT 545
Cite 2 - [2012] QCAT 545
Cite 3 - [2012] QCAT 545

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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