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Haraba Pty Ltd v Mortley[2015] QCATA 48

Haraba Pty Ltd v Mortley[2015] QCATA 48

CITATION:

Haraba Pty Ltd as trustee for the Haraba Trust trading as Brisbane Gateway Resort v Mortley [2015] QCATA 48

PARTIES:

Haraba Pty Ltd as trustee for the Haraba Trust trading as Brisbane Gateway Resort

(Applicant/Appellant)

v

Gerald Thomas Mortley and Alecia Abujen Mortley

(Respondents)

APPLICATION NUMBER:

APL408-14

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Stilgoe OAM

Member Howe

DELIVERED ON:

13 April 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Leave to appeal is granted.
  2. The appeal is allowed in part whereby Order 2 of the orders of the Tribunal is deleted.
  3. The appeal is otherwise dismissed.

CATCHWORDS:

Assignment of site agreement – unreasonable refusal to consent to assignment – interpretation of special terms of site agreement – alleged ambiguity – evidence of surrounding circumstances in construction of terms – change in legislation affecting park owner – Form 8 statutory instrument – use of explanatory notes – interpretation to best achieve purpose – no pleadings in the Tribunal – pre-emptive order

Manufactured Homes (Residential Parks) Act 2003 ss 47(1), 48, 144

Acts Interpretation Act 1954 ss 14A, 14B

Bell [1845] EngR 175

Great Western Railway and Midland Railway v Bristol Corporation (1918) 87 LJ(Ch) 414

Bickel v Duke of Westminster [1977] 1 QB 517

Pioneer Shipping Ltd v BTP Tioxide Ltd [1981] 2 All ER 1030

Associated Blue-metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 309

Hope v Bathurst City Council [1980] HCA 16

DMW v CGW [1982] HCA 73

Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24

Byrnes v Kendle [2011] HCA 26

Go & MJ Nominees Pty Ltd v Hollywells Homewares Pty Ltd [2010] QSC 169

Crawley v Crawley Land & Ors [2012] QSC 294

Haraba Pty Ltd v Castles [2006] QDC 388

Lyons v Queensland Building Services Authority & Anor [2011] QCATA 240

Thompson & Anor v Jedenhay Pty Ltd [2012] QCATA 246

Ryan v Worthington [2014] QCATA 277

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”).

REASONS FOR DECISION

Senior Member Stilgoe

  1. [1]
    In this matter, the Appeal Tribunal consisted of Mr Howe, QCAT Member and me. I have had the benefit of reading his reasons in draft. I agree with his reasons, and his conclusions, and the order he proposes.

Member Howe

Background

  1. [2]
    Mr and Mrs Mortley owned a manufactured home at Brisbane Gateway Resort.  They signed a site agreement with the park owner, Haraba Pty Ltd, in 2008.  It was for a fixed term ending in 2016.  In 2010, changes made to the Manufactured Homes (Residential Parks) Act 2003 (the Act) meant the site agreement was no longer for a fixed term but continued indefinitely.
  2. [3]
    The Mortleys decided to sell.  Mr Ryrie agreed to buy the home.  He needed the consent of the park owner however.  The park owner refused consent.
  3. [4]
    The Mortleys applied to the Tribunal.  Following a hearing the Tribunal ordered:
  1. That the park owner consent to the assignment.
  1. The park owner withdraw the administration and establishment charge imposed under special term 14 of $32,000.
  1. Any future administration and establishment charge imposed under special term 14 for the purpose of the assignment to Ryrie in excess of $500 be accompanied by an itemised list of the costs included in the charge.
  1. [5]
    The park owner has appealed the decision.  The grounds of appeal appear to raise mixed issues of fact and law.  The appeal turns in large part on the construction of a document.  The construction of a contractual document is a question of law,[1] although that rule has been said to be based on historical rather than logical premise.[2]  It has also been said however the common understanding of words is determined as a question of fact and accordingly the construction process is a mixed question of fact and law.[3]  An additional issue on appeal is whether the park owner unreasonably refused to consent to assignment in breach of the Act.[4]  That is a question of law.[5]
  2. [6]
    Insofar as leave to appeal is necessary, leave should be granted on the basis that there is a question of general importance concerning the right of a park owner to impose substantial charges on purchasers of manufactured homes from owners seeking to sell.  On that issue, a decision of the Appeal Tribunal would be to the public advantage.

Ground 1: The Tribunal Member erred in finding that the applicant acted unreasonably in refusing to consent to the assignment on the basis that Mr Ryrie never intended to pay the administration and establishment charge’.

  1. [7]
    Special term 14(c) of the Mortleys’ site agreement provided ‘The park owner may increase, decrease or revoke the administration and establishment charge specified in item 10 of schedule 2 to these Special Terms at any time before it is paid without notice to the home owner or the assignee’.
  2. [8]
    Item 10 of schedule 2 was $500.  The park owner told Mr Ryrie however that the charge he would have to pay was $32,000.  Mr Ryrie said he wouldn’t pay $32,000.  The park owner relied on that to refuse consent to the assignment.
  3. [9]
    When the Mortleys signed their site agreement, it was for a fixed term ending in 2016.  There was no mention of termination costs.  The park owner says there was no need for it given the agreement terminated by effluxion of time.  Once the term ended the park owner recovered the land.  But with the changes to the Act in 2010, and the site agreement converting to an indefinite duration, if the park owner wanted to use the land for a purpose other than a manufactured home site it had to terminate the site agreement and pay the home owner compensation.[6]
  4. [10]
    The park owner’s contentions are as follows.  The expression administration and establishment charge is ambiguous.  The expression could and should encompass all costs, current, future or potential, relating to the homeowner’s occupation of the site and management of the site agreement from creation to termination. 
  5. [11]
    It would not have entered into a site agreement with the Mortleys if it hadn’t been a fixed term.  This circumstance should have been taken into account by the learned Member when construing the meaning of the expression “administration and establishment charge”.  That circumstance justified a broader interpretation of the term to include potential future compensation costs to recover the site for other uses.
  6. [12]
    The Motleys maintain neither party anticipated the amendments to the Act when they signed the site agreement.  Neither party considered the possibility of the administration and establishment charge increasing from $500 to $32,000.
  7. [13]
    The learned Member concluded the expression “administration and establishment charge” meant a charge to cover the park owner’s costs when a new home owner entered the park.  That meant Mr Ryrie was right to deny the park owner its suggested charge of $32,000 and the park owner should not have withheld consent to the assignment because of Mr Ryrie’s stance.
  8. [14]
    The special terms to the site agreement are contractual in nature.  They are terms negotiated between the parties.  They are different from the standard terms in site agreements prescribed by regulation.
  9. [15]
    Construction of the terms of a contract involves ascertaining and giving effect to the intention of the parties as at time of contracting.  The reference to intention is a reference to objective rather than subjective intention.  The courts ask what a reasonable person having all the background knowledge of the surrounding circumstances available to the parties at time of contract would have understood the words used in the contract to mean.  An examination of surrounding circumstances does not extend to permit examination of subjective intent however.  Parties may therefore find themselves bound by a contract to things neither of them intended.[7]
  10. [16]
    Evidence of surrounding circumstances however is only admissible if the language in a contract is ambiguous or susceptible of more than one meaning.[8]
  11. [17]
    Accordingly, the initial issue for determination is whether the expression “administration and establishment charge” used in the site agreement is ambiguous or capable of more than one meaning.  If it is not, then there can be no reference to surrounding circumstances to alter that unambiguous meaning.
  12. [18]
    The learned Member said the expression had a plain English meaning which was a charge to cover the costs incurred when a new home owner entered the park.  
  13. [19]
    The expression should be read in the context of special term 14 as a whole.  The charge is payable on execution of the site agreement or on acceptance of an assignment of a site agreement.  That indicates it concerns a “start-up” cost.  There is no mention of costs associated with termination of the site agreement in the special term.  In my opinion one would expect that to be specifically mentioned if intended to be included in such a charge regardless of whether the site agreement was for a fixed term or otherwise.
  14. [20]
    The words establishment charge seem clear and unambiguous.  They clearly refer to start-up costs, certainly not termination costs. 
  15. [21]
    As to the word administration, its dictionary meaning of ‘the process or activity of running a business or organisation’ is not entirely helpful.[9]  Given the use of the conjunctive “and” its meaning is coloured and affected by its association with the word establishment.  That association suggests the expression refers to those very common charges levied to cover minor sundry office and bookkeeping costs such as are common to most businesses.  They are generally not substantive costs. 
  16. [22]
    I conclude the expression administration and establishment charge in special term 14 was intended for the park owner to recover those minor administrative costs the park owner incurs upon the introduction into the park of a new home owner or assignment of an existing site agreement.  It does not include potential termination costs or compensation, which more appropriately forms, or should form, part of the negotiable price of the site agreement.  In my opinion, there is no ambiguity in the expression “administration and establishment charge”.  The words are clear on their face as to meaning.  Given that, there is no call for consideration of surrounding circumstances.
  17. [23]
    The park owner itself says as much in its submissions on appeal.  ‘…As an agreement for a fixed term, in monetary terms the administration and establishment charge would only encompass matters relating to the commencement of the site agreement.’[10]  That confirms the interpretation of the expression by the learned Member. 
  18. [24]
    The meaning of the contractual terms is the meaning they held at time of contracting.  The meaning does not change because something happens years later that affects or potentially affects the financial viability or profit of the contract to one of the parties.
  19. [25]
    In Codelfa[11] Mason J also referred to the judgments of Atkinson and Shaw LJJ in Great Western Railway and Midland Railway v Bristol Corporation[12] and he noted their Lordships took the view that evidence of surrounding circumstances was not admissible to raise an ambiguity.  That would be to contradict or vary the words of the written document.[13]
  20. [26]
    That seems to me to be what the park owner has done here.  The park owner relies on surrounding circumstances to raise an ambiguity not otherwise existing as at date of contract.  Its argument really is that the expression “administration and establishment charge” is ambiguous because it does not specifically rule out a very large potential compensation payout that formed no part of the contract between the parties when the contract was agreed.
  21. [27]
    The expression “administration and establishment charge” referred to in special term 14 does not extend to include anticipated possible future costs of termination of the site agreement. 
  22. [28]
    Accordingly, Mr Ryrie was entitled to refuse to pay $32,000.  Therefore, the learned Member’s conclusion that it was not reasonable for the park owner to refuse consent to the assignment because of Mr Ryrie’s refusal was correct.
  23. [29]
    It might also be appropriate to deal here in passing with the submission of the park owner that the learned Member erred in not taking into account an audio recording that discloses Mr Ryrie refusing to pay the $32,000 charge.  There was no need to do that given Mr Ryrie admitted saying exactly that in the hearing.

Ground 2: ‘The Tribunal Member erred in finding that the applicant acted unreasonably in refusing to consent to the assignment on the basis that the applicant is transitioning out of the provision of manufactured home sites in the park’.

  1. [30]
    The park owner says it was entitled to take into account that its future relationship with Mr Ryrie would suffer because he knew the park owner wanted to transition out of manufactured home sites.  Mr Ryrie had no intention of moving after he purchased.  That would most likely give rise to litigation, which would burden the park owner in terms of time and cost.
  2. [31]
    The learned Member found that there was no evidence that the park owner would spend more resources or pay more costs if there was litigation with Mr Ryrie rather than the Mortleys.  The park owner says litigation with a long-standing resident as opposed to a new entrant would be different.  There is no explanation what the difference would be.  There is no suggestion that any compensation to be paid would be more to Mr Ryrie rather than the Mortleys.  The learned Member was clearly correct in finding that this reason did not justify the park owner refusing consent to the assignment.
  3. [32]
    On the same basis, the park owner’s next ground of appeal fails.

Ground 3: The Tribunal Member erred in finding that the applicant acted unreasonably in refusing to consent to the assignment on the basis that the site agreement is not in a form that is applicable to Mr Ryrie.

  1. [33]
    The park owner contends it made it clear to site owners in 2009 that it intended to transition out of manufactured home sites.  It would not have entered into the fixed term site agreement with the Mortleys if it knew there would be changes to the legislation in 2010, which converted fixed terms agreements to indefinite.  The present agreement is different from the original fixed term agreement.  That change could be taken into account by the park owner to deny consent to the assignment.  A number of authorities were cited in support of that proposition at hearing. 
  2. [34]
    The authorities referred to are not strictly on point.  The closest is Bickel v Duke of Westminster[14].  There, there was a long lease of premises at a low rent.  The consent of the landlord was required to assign.  Consent was refused.  The Court of Appeal accepted that refusal was reasonable because the assignee could, on the particular fact situation there, become entitled to acquire the freehold title at a low price because of legislation passed some 20 years after the leases were first entered into.  The Court of Appeal held it was reasonable for the landlord to prevent that happening. 
  3. [35]
    But in Bickel the lessee seeking to assign was not entitled to purchase the freehold estate at a low price, whereas the assignee would be so entitled.  That is entirely different from the present factual and legal situation of the Mortleys and Mr Ryrie.
  4. [36]
    Here, regardless of the homeowner, the Act applied to require the park owner to pay compensation if it seeks to terminate a site agreement because it wants to use the site for another purpose.  The change from fixed term to indefinite applies regardless and independent of the identity of the homeowner.  As the learned Member found, there was no identifiable benefit to the park owner in ensuring the homeowner did not change.  The learned Member was correct in concluding it was not reasonable to refuse consent on this basis.

Ground 4: The Tribunal Member erred in finding that the Applicant acted unreasonably in refusing to consent to the assignment on the basis that the Applicant and the Respondents were parties to a proceeding before the Tribunal with respect to the site rent payable under the site agreement.

  1. [37]
    The park owner says there was another matter before the Tribunal concerning site rent increases when the assignment to Mr Ryrie was proposed.  The other proceedings involved the park owner and various other homeowners including the Mortleys.  There was the possibility of cost orders being made in those proceedings.  The park owner therefore perceived certain commercial risks, it says, associated with the assignment.  The amount of the site rent was unclear.  Mr Ryrie was not a party to the other proceedings and orders in the other proceedings would not apply to him.  Cost orders in those other proceedings could not be enforced against Mr Ryrie.
  2. [38]
    There is no substance to these contentions.  The learned Member found that Mr Ryrie knew about, and agreed to pay, any site rent increase.[15]  Therefore, the park owner is not left exposed to a greater commercial risk by virtue of the assignment than it would face if the Mortleys continued as homeowners. 
  3. [39]
    As to cost orders in the other proceedings, the relevant orders would be between the parties to the action and any order as to costs would be in accordance with the directions of the Tribunal at its discretion.  There was a release of liability in the Form 8 transfer document but that only extended to rights and liabilities under the Mortleys’ site agreement.  It had no bearing on the unrelated other proceedings.  It was unreasonable for the park owner to refuse to consent to assignment on these grounds of so-called commercial risk.

Ground 5: The Tribunal Member erred in finding that the applicant acted unreasonably in refusing to consent to the assignment on the basis that the applicant’s legitimate interests would not be protected if it consented to the assignment by signing the Form 8 form of assignment (transfer).

  1. [40]
    The park owner contends that if it had signed the Form 8 transfer document, the effect of that would have been to release the Mortleys from all liability associated or arising from their occupancy of the site.
  2. [41]
    Form 8 is an approved document sanctioned by s 47(1) of the Act.  At page 4 of the document it requires an acknowledgement by the park owner that ‘… by signing this form I am consenting to the assignment (transfer) and releasing the seller/s from all liability under the site agreement from the time of completion of the sale of the manufactured home’.  On initial construction the meaning and extent of the release seems clear.  The release is effective in favour of the sellers in respect of liabilities arising post assignment.  The park owner suggests however that the release is much wider than that. The park owner’s position is that the release is ‘… from all liability under the site agreement…’, and that release applies from ‘… the time of completion of the sale of the manufactured home’.
  3. [42]
    The wording of the release is unfortunate.  But if that construction applies, which would be most unusual, then the same construction must similarly and most unusually expand the undertaking by the assignee at page 3 of Form 8.  There the assignee undertakes  ‘… that in accepting the assignment (transfer) … I/we have assumed the rights and obligations of the seller/s and the site agreement and will be bound by the terms and conditions in the site agreement and the rules of the residential park from the time of completion of the sale of the manufactured home’
  4. [43]
    By s 47(1) of the Act, an assignment of the sellers’ interest must be in the approved form.  By s 144, the Chief Executive may approve forms for use under the Act.  The Chief Executive has approved Form 8.  Form 8 is a statutory instrument.[16]
  5. [44]
    Sections 14A and 14B of the Acts Interpretation Act 1954 applies to the statutory instrument[17] to assist in its interpretation.  Section 14A(1) provides ‘In the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation’.
  6. [45]
    An object of the Act is to enable homeowners, and prospective homeowners, to make informed choices by being fully aware of their rights and responsibilities in their relationship with park owners.  That object is clearly thwarted by adoption of the interpretation of the release and the undertaking in Form 8 proposed by the park owner.
  7. [46]
    In my view, the interpretation of the release in Form 8 that best achieves the purpose of the Act is that the release is limited to only those liabilities that arise post-assignment.  Similar conclusions apply to the assignee’s undertaking.
  8. [47]
    Further, s 14B(1) of the Acts Interpretation Act provides:

…in the interpretation of a provision of an Act, consideration may be given to extrinsic material capable of assisting in the interpretation - (a) if the provision is ambiguous or obscure—to provide an interpretation of it; or (b) if the ordinary meaning of the provision leads to a result that is manifestly absurd or is unreasonable—to provide an interpretation that avoids such a result; or (c) in any other case—to confirm the interpretation conveyed by the ordinary meaning of the provision.

  1. [48]
    The explanatory notes to the Manufactured Homes (Residential Parks) Amendment Bill 2010, which rendered invalid fixed term site agreements, referred to the long-term, potentially inter-generational nature of site agreements.[18]  The explanatory notes also referred to the Act being intended to provide manufactured home owners with a high level of certainty in their ability to reside in a residential park.
  2. [49]
    The interpretation proposed by the park owner results in a manifestly absurd exchange of liabilities between seller and purchaser without nexus to the actions giving rise to the liabilities.  That cannot have been the intention.  Limiting the release granted the sellers in Form 8 to future liabilities arising in consequence of actions by the purchaser after the sellers leave the park is entirely sensible and accords with the object of the Act.  Further, it provides the high level of certainty to site owners with respect to their occupancy referred to in the explanatory notes to the Bill. 
  3. [50]
    The park owner’s contention concerning the release in Form 8 cannot be supported.  It was not reasonable for the park owner to refuse consent to assignment on this ground.

Grounds 6 and 7: The Tribunal Member erred in finding that the cumulative effect of the applicant’s reasons to refuse to consent to the assignment was that the applicant had acted unreasonably. The Tribunal Member erred in ordering that the park owner consent to the assignment of the site agreement to Mr Ryrie’.

  1. [51]
    In light of the foregoing, the learned Member was entitled to conclude that the park owner acted unreasonably in refusing to consent to the assignment of the site agreement from the Mortleys to Ryrie and to order that it do consent. 

Ground 8: The Tribunal Member erred in ordering that the park owner withdraw the administration and establishment charge imposed under special term 14 for $32,000.

  1. [52]
    The contention here is that the learned Member had no power to make an order that the park owner withdraw the administration and establishment charge of $32,000.  That order was not sought in the Mortleys’ initial application, says the park owner, and therefore there was no basis and consequently no jurisdiction to make the order.
  2. [53]
    There are no pleadings in matters before the Tribunal.  Rules in other court proceedings which bind parties to a pleaded case have no necessary application in the Tribunal.[19]  But, it is a fundamental requirement of procedural fairness that any person appearing be given appropriate notice of the case he or she must meet.[20]  Generally in matters before the Tribunal the parties’ cases are to be derived from the statements of evidence filed.[21] 
  3. [54]
    At the commencement of the hearing, the learned Member discussed the Mortleys’ application with them.  The application was for the Tribunal ‘…to do all things and sign all documents necessary to facilitate the assignment of the applicant’s interest in the site agreement…’.  The Member enquired of Mr Mortley: ‘…do you include in that, that you want the Tribunal to do something about the administration and establishment charge?’ to which Mr Mortley replied: ‘Well yes.… because even if Mr Ryrie doesn’t go ahead with it, nobody is going to come in and pay the price of your home plus another $32,000 which is not even the establishment fee’.[22]
  4. [55]
    At the hearing, Mr Holland for the park owner queried the additional matters raised by the Mortleys in submissions apparently filed just before hearing and further queried the jurisdiction of the Tribunal to address more than the single issue of the park owner’s consent to assignment.  An adjournment was requested to address the additional issues.  The Member determined that the matter should proceed, but procedural fairness dictated that the parties be granted an opportunity to provide written submissions addressing the additional matters.[23]  The learned Member pointed out that the additional matters concerned legal argument rather than factual dispute.
  5. [56]
    The park owner filed submissions about the jurisdiction of the Tribunal to make an order extending beyond consent to assignment.  The park owner was not denied an opportunity to be heard or to make submissions prior to the determination of the matter by the learned Member.  This concerned a question of law and did not require factual evidence. 
  6. [57]
    The Member raised an issue about the extent of the relief sought in the application with Mr Mortley and it is clear Mr Mortley was seeking a determination about the validity of special term 14.  In my opinion, the interpretation of the administration and establishment charge was appropriately raised and available for adjudication though not specifically identified in the initial application document.
  7. [58]
    The park owner further contends however under this ground of appeal that the administration and establishment charge was never imposed on the Mortleys.  The proposed increase formed no part of the present site agreement.  As such, there was no site agreement dispute between the park owner and the Mortleys. 
  8. [59]
    It is clear that the Mortleys challenged the interpretation of the phrase “establishment and administration fee” in their site agreement.  It is also clear that the park owner relied on a wrongful interpretation of that expression to refuse consent to assignment.  The park owner’s wrongful interpretation of the terms of the site agreement, challenged as it was by the Mortleys, constituted a site agreement dispute.[24]  The learned Member was entitled to construe the site agreement document and by virtue of s 140 of the Act, make any order she considered appropriate to resolve the dispute.
  9. [60]
    Insofar as the learned Member was entitled to construe the term administration and establishment charge, did that entitle the Member to order that the establishment and administration fee of $32,000 ‘imposed’ be withdrawn? 
  10. [61]
    The administration and establishment charge was not levied against the Mortleys however.  The park owner didn’t levy it against Mr Ryrie either.  It advised Mr Ryrie it would levy that fee against him if he became the homeowner.
  11. [62]
    The wording of Order 2, that the park owner withdraw the administration and establishment charge imposed under special term 14 for $32,000, in effect seeks to pre-empt a challenge by Mr Ryrie anticipated immediately after assignment when the charge was actually levied.  But Mr Ryrie was not a party to the site agreement dispute before the Tribunal in which Order 2 was made.  Section 140 of the Act did not extend to allow the Tribunal to make an order outside an existing site agreement dispute.  The Tribunal is an Inferior Court.  There is nothing within the jurisdiction of an Inferior Court unless it is granted by statute.[25] 
  12. [63]
    The learned Member made a determination that the administration and establishment charge referred to in special term 14 was to be construed as limited to a charge to cover the cost incurred when a new home owner entered the park and that did not extend to include a prospective cost of estimated compensation if the park owner decided to terminate the site agreement under s 38(1)(f) of the Act.  That was sufficient to conclude the matters before the learned Member.
  13. [64]
    A similar issue arose in the matter of Haraba Pty Ltd v Castles.[26]  That involved the present park owner as a litigant as well.  There the homeowner proposed to sell her home to a purchaser.  The park owner gave the prospective purchaser a disclosure statement to the effect that the park owner intended to use the site as holiday accommodation after the homeowner ceased to be a resident.  The Tribunal made an order that the park owner not state in any disclosure statement that the purchaser would not be provided with a site agreement.
  14. [65]
    Forde DCJ concluded the order was pre-emptive.  The order was set aside but not the Tribunal’s refusal to allow the park owner to terminate the site agreement.  That meant, his Honour said, that it would be contumacious of the park owner to include in any disclosure statement a statement that a purchaser would not be provided with a site agreement.
  15. [66]
    Accordingly, it was sufficient here that the learned Member made the findings it did concerning the interpretation of special term 14 as part of the resolution of the site agreement dispute.  If the park owner flouts that determination that would amount to disobedience of the authority of the Tribunal.  It was accordingly unnecessary for the Tribunal to make the pre-emptive order.  On this basis Order 2 cannot stand.

Ground 9: The Tribunal Member erred in making order 3 and acted without jurisdiction in making that Order’.

  1. [67]
    Order 3 was that any future administration and establishment charge imposed under special term 14 for the purpose of the assignment from the Mortleys to Mr Ryrie in excess of $500 be accompanied by an itemised list of the costs included in the charge.
  2. [68]
    As stated above, the dispute between the park owner and the Mortleys concerning construction of the phrase administration and establishment charge constituted a site agreement dispute.  As such, it was within the jurisdiction of the Tribunal to make orders it considered appropriate to resolve the dispute.[27]  The order made by the learned Member was within power given it was directed to resolution of the extant site dispute between the parties before the Tribunal.

Conclusions

  1. [69]
    Save that Order 2 was beyond power and should be set aside, the appeal should be dismissed.

Footnotes

[1] Pioneer Shipping Ltd v BTP Tioxide Ltd [1981] 2 All ER 1030 at 1035 per Lord Diplock referring to the illiteracy of juries in times past.

[2]  Ibid.

[3] NSW Associated Blue-metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 309 per Kitto J at 511 - 512 cited by Mason J in Hope v Bathurst City Council [1980] HCA 16 at [12].

[4]  Act s 49(3).

[5] Hope v Bathurst City Council [1980] HCA 16 per Mason J at [5] and [21] with whom Gibbs and Stephen JJ agreed.

[6]  Act s 40(2).

[7] Byrnes v Kendle [2011] HCA 26 at [98] – [101] per Heydon and Crennan JJ.

[8] Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24 at [22] – [24]; (1982) 149 CLR 337 per Mason J (as he then was) at 362.

[9]  British and World English Edition of the Oxford Dictionary (online).

[10]  Submissions at [64].

[11]  Ibid [17].

[12]  (1918) 87 LJ(Ch) 414.

[13]  Followed and applied by Atkinson J in Crawley v Crawley Land & Ors [2012] QSC 294 at [90] – [92].

[14]  [1977] 1 QB 517.

[15]  see attachment 7A agreement annexed to the initial Application.

[16] Statutory Instruments Act 1992 ss 7(2) and (3) ‘another instrument of a public nature by which the entity making the instrument unilaterally affects a right or liability of another entity’.

[17]  Ibid s 14 and Schedule.

[18]  Explanatory Notes, Manufactured Homes (Residential Parks) Amendment Bill 2010 at 6, 19.

[19] Ryan v Worthington [2014] QCATA 277 at [8] citing Go & MJ Nominees Pty Ltd v Hollywells Homewares Pty Ltd [2010] QSC 169.

[20] Lyons v Queensland Building Services Authority & Anor [2011] QCATA 240 at [13].

[21] Thompson & Anor v Jedenhay Pty Ltd [2012] QCATA 246.

[22]  Transcript 1-9 LL43 – 46 and 1-10 LL1 – 6.

[23]  Ibid at 1-11 LL19 – 39 and 1-15 at LL15 – 20.

[24]  Act s 14A(1)(a).

[25] DMW v CGW [1982] HCA 73; (1982) CLR 491;  ‘It has been held that "nothing shall be intended to be out of the jurisdiction of a Superior Court, but that which specially appears to be so; and, on the contrary, nothing shall be intended to be within the jurisdiction of an Inferior Court but that which is so expressly alleged". See Peacock v Bell [1845] EngR 175; (1667) 1 Wms Saund 69, at p 74 [1845] EngR 175; (85 ER 81, at pp 87 – 88)’.

[26]  [2006] QDC 388.

[27]  Act s 140.

Close

Editorial Notes

  • Published Case Name:

    Haraba Pty Ltd as trustee for the Haraba Trust trading as Brisbane Gateway Resort v Gerald Thomas Mortley and Alecia Abujen Mortley

  • Shortened Case Name:

    Haraba Pty Ltd v Mortley

  • MNC:

    [2015] QCATA 48

  • Court:

    QCATA

  • Judge(s):

    Senior Member Stilgoe

  • Date:

    13 Apr 2015

Appeal Status

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

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