Ingenia Lifestyle Durack v Ivanov
[2024] QCAT 405
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- Ingenia Lifestyle Durack v Ivanov[2024] QCAT 405
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Ingenia Lifestyle Durack v Ivanov[2024] QCAT 405
Ingenia Lifestyle Durack v Ivanov[2024] QCAT 405
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Ingenia Lifestyle Durack v Ivanov [2024] QCAT 405 |
PARTIES: | INGENIA LIFESTYLE DURACK (applicant) v PETER IVANOV (respondent) |
APPLICATION NO/S: | OCL076-23 |
MATTER TYPE: | Other civil dispute matters |
DELIVERED ON: | 20 September 2024 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Aughterson |
ORDERS: |
|
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where application for termination of site agreement – where alleged contraventions of terms of agreement – where alleged interference with quiet enjoyment – where alleged failure to remedy contravention after notice – whether site agreement should be terminated. Manufactured Homes (Residential Parks) Act 2003 (Qld), s 38, s 39A, s 105, s 108 Haraba Pty Ltd v Castles [2007] QCA 206 | |
APPEARANCES & REPRESENTATION: | The matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) |
REASONS FOR DECISION
- [1]On 30 November 2023, Ingenia Lifestyle Durack (‘the applicant’) filed an application in the Tribunal seeking termination of a site agreement with Mr Ivanov (‘the respondent’), relating to lot 254 at Ingenia Lifestyle Durack, pursuant to s 38 of the Manufactured Homes (Residential Parks) Act 2003 (Qld) (‘the Act’).
- [2]Section 38 of the Act is headed ‘Termination of site agreement by tribunal – conduct of home owner etc.’ and provides:
- (1)On application by the park owner under a site agreement, the tribunal may make an order (a termination order) terminating the agreement on any of the following grounds—
- (a)the home owner—
- (i)has contravened a term of the agreement; and
- (ii)has failed to remedy the contravention after being given by the park owner a notice, in the approved form, requiring the home owner to remedy the contravention within 28 days after the notice is given;
- (b)the home owner has assaulted a person who was lawfully in the residential park;
- (c)the home owner has wilfully destroyed property, other than the home owner’s property, on the residential park or site;
- (d)the home owner is using the site other than as a place of residence;
- Example of the home owner using the site as a place of residence—
- the home owner using the site as rental accommodation
- (e)the home owner, or the home owner’s tenant or guest— [1]
- (i)repeatedly interferes, or has repeatedly interfered, with the quiet enjoyment of the residential park by the park’s residents; and
- (ii)continues, or has continued, the behaviour mentioned in subparagraph (i) after the park owner gives the home owner a notice, in the approved form, requiring the home owner to stop the behaviour.
- (2)In this section—
- assault includes threaten to assault, procure someone else to assault and attempt to assault.
- [3]In terms of the Act, the applicant is a ‘park owner’ and the respondent a ‘home owner’. It is alleged that the respondent has contravened a term of the agreement and has failed to remedy the contravention after being given notice pursuant to s 38(1)(a) of the Act. It is further alleged that the respondent or his tenant or guest has interfered with the quiet enjoyment of the residential park by the park’s residents and has continued to do so after being given notice, in accordance with s 38(1)(e) of the Act.
- [4]The material filed by the applicant included two separate notices: Form 6 – Notice to remedy breach. In the first notice dated 17 August 2022 it is alleged that the respondent breached clause 4.1.1(h) of the Site Agreement, which places an obligation of the home owner ‘to comply with the agreement and park rules’. Specific reference is made to the following rules or parts thereof:
- 3STORAGE
- You must not use decks, carports or common areas as storage space without our consent. Including, but not limited to, storing items such as paint tins, bottles, boxes, luggage, garden tools, electric equipment and furniture (other than specifically designed outdoor furniture).
- 6GENERAL
- The Park Owner all residents, contractors and goods and service providers must use the pathways and roadways within the community to gain access to residential sites, and must not walk between dwellings or trespass onto the sites of other residents unless prior permissions has been given to the resident or service provider.
- 8NOISE
- For the general quiet enjoyment of all residents of the Community, noise at any time must not constitute a nuisance to other residents. Noise must be kept to a minimum after 9.30pm. Intrusive, prolonged noise, that disturbs the peace and quiet of other residents, will not be tolerated at any time. Social functions exceeding ten guests must be brought to the Park Owner’s attention for approval prior to the function going ahead.
- 9MAINTENANCE AND ALTERATIONS TO DWELLINGS
- a)The Resident’s dwelling and/or any associated structure or annex and site that it occupies, must have a clean and tidy appearance and must be reasonably maintained at all times…
- b)Residents are required to obtain written permissions from the Park Owners before making any alterations or additions to their dwellings. Forms are available from the office.
- …
- d)furniture outside is acceptable as long as it is in a clean and tidy condition on the veranda or within the boundaries of the site.
- e)Surplus belongings and white goods are not to be stored on the veranda, under the house or outside the dwelling if they are clearly visible from the street.
- e)Areas under and around vans and homes are to be kept clear of rubbish at all times.
- 10LANDSCAPING
- …
- b)It is the responsibility of the residents to regularly maintain and keep neat and tidy all lawns and gardens on their designated sites.
- …
- 11RUBBISH/GARBAGE
- a)Garbage and recyclable materials including bottles, cans, paper etc should be wrapped and placed into the bulk rubbish bins provided at various locations around the Park.
- …
- e)Residents are responsible for arranging the disposal of large waste items such as building materials, old furniture, white goods etc., at their own cost. They are not to be placed on the kerb.
- 13VANDALISM
- a)No one must vandalise any sites in the community, common areas, plants, structures, property or dwellings located within the community.
- b)The Park Owner reserves the right to report any act of vandalism to the Police.
- [5]In the second Form 6 notice, dated 6 February 2023, it is again alleged that the respondent breached clause 4.1.1(h) of the Site Agreement. With this notice, reference is made to rules 3, 6, 8, 9, 10 and 11, as set out above. With each Form 6, the requisite time was allowed the owner to rectify the breach.
- [6]In the application to the Tribunal, while breaches are alleged in relation to rules 3, 6, 8, 9, 10 and 11, no reference is made to rule 13 and, unlike the other rules noted, rule 13 is not highlighted by the applicant on the copy of the rules provided to the Tribunal.
- [7]The dispute was referred to the Registrar of the Tribunal for mediation pursuant to s 108 of the Act and, following mediation, on 3 October 2023 the Tribunal notified the parties that the dispute had not been resolved at mediation.
- [8]The evidence filed in support of the application included a statement made by the applicant’s Community Manager, copies of letters written by the applicant to the respondent in relation to his behaviour, and some 26 copies of statements and emails, as well as several text messages, detailing complaints made in relation to the respondent by other residents within the complex from July 2021 to December 2023. Also included in the material filed are numerous photographs of and around the respondent’s site, lot 254, dated March 2021; September 2022; February, March, September, November and December 2023; and January, February and March 2024.
- [9]The statement of the Community Manager refers to conduct on the part of the respondent from November 2019. The incidents referred to include loud music at all hours of the day and night; loud conversations with himself; yelling abuse; threatening other residents; disposing of concrete slurry in a neighbour’s yard; intoxication leading to yelling at and intimidation of other residents; making lewd comments to residents; shouting obscenities; knocking on a resident’s window at night; urinating on the road and trees of other residents; using power tools at all hours; bringing junk/rubbish onto the property; and keeping lot 254 in an unkept state.
- [10]The Community Manager states that following a mediation held on 26 September 2023, at which the respondent agreed to remove rubbish from the premises and not to engage in specified conduct, further written complaints have been received in relation to the respondent. Also, subsequently taken photographs show that the amount of rubbish or items around his property was much the same as shown in photographs taken prior to the mediation.
- [11]As indicated above, there have been a significant number of written complaints in relation to the respondent, including those made in late 2023. They detail the sort of incidents referred to by the Community Manager as noted above. More specific incidents include telling a neighbour with health problems that they were going to die; telling a neighbour that ‘he will get’ them; approaching the visitors of other residents and asking them questions about those other residents; shining his torch through the windows of other residents in the middle of the night; and, more generally, that his behaviour is erratic and unpredictable and that residents do not feel safe living near him.
- [12]No material has been filed by the respondent and he has been non-compliant with directions issued by the Tribunal on 14 December 2023 and 22 March 2024. He did not attend a Directions Hearing that was held on 19 July 2024.
- [13]On the material before me, I am satisfied on the balance of probabilities that, in terms of s 38(1)(a) of the Act, the home owner has contravened clause 4.1.1(h) of the relevant Site Agreement; that is, that he has failed to comply with the agreement and park rules. In particular, he has breached rules 6, 8, 9, 10, and 11 set out above. Further, I am satisfied that that he has failed to remedy the contraventions after being given notice in the approved form, requiring him to remedy the contraventions within 28 days after the notice was given.
- [14]It is noted that the applicant also relies upon s 38(1)(e) of the Act, which relates to interference with quiet enjoyment of the residential park by the park’s residents. Relevant to that provision, clause 4.1.1(d) of the Site Agreement refers separately to the responsibility of the home owner ‘not to interfere with the reasonable peace, comfort or privacy of other park residents or allow guests or tenants to do so’. However, the notices to remedy breach in the present case refer only to the obligation under clause 4.1.1(h). No reference is made to clause 4.1.1(d). Upon receiving the notices, the respondent would have been entitled to conclude that reliance was being placed on clause 4.1.1(h) of the Site Agreement only.
- [15]Accordingly, no determination is made in relation to the ground for termination at s 38(1)(e) of the Act. Nevertheless, there is an overlap because, relevant to clause 4.1.1(h), the park rules include obligations in relation to matters such as noise and trespass.
- [16]While a ground for termination has been established under s 38(1)(a) of the Act, s 38 is not cast in mandatory terms; that is, it provides that the Tribunal ‘may’ make an order terminating the agreement where one or other of the grounds is established.[2]
- [17]It is appropriate to make an order for termination in the present case. The breaches of the Site Agreement have been very significant and persistent over an extended period of time, including after the holding of a mediation between the parties. It is evident that the respondent has no intention of complying with the Site Agreement and park rules. It is also evident that other residents feel unsafe because of his conduct.
- [18]In relation to the contravention under s 38(1)(a) of the Act, I make an order terminating the site agreement entered into with the respondent in relation to lot 254. In accordance with s 39A of the Act, which requires that a termination order must state the day on which the termination of the site agreement is effective, it is ordered that the termination take effect as of and from Friday 18 October 2024.