M & T Entriken Pty Ltd v Nicholson (No 2)
[2015] QCATA 88
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- M & T Entriken Pty Ltd v Nicholson (No 2)[2015] QCATA 88
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M & T Entriken Pty Ltd v Nicholson (No 2)[2015] QCATA 88
M & T Entriken Pty Ltd v Nicholson (No 2)[2015] QCATA 88
CITATION: | M & T Entriken Pty Ltd v Nicholson & ors (No 2) [2014] QCATA 88 |
PARTIES: | M & T Entriken Pty Ltd t/as M&T Entriken Trading Trust (Applicant/Appellant) v Alexander Archibald Nicholson Col Barrett, M Moore, K Fear, J Gooding, Estate of Alan Pedwell, David George Swire, J Swire, K Cob, Ronald Norman Brooks, B Johnson, S Baker, J Petersen, J Ball, U Ball, K Hearl, M Appo, L Appo, N Best, M Best, B Jeffery, S Jeffery, E Nielsen, H Vievers, J Vievers, R Just, R Just, E Edwards, C Thomas, R Brooks, P Brooks, M Jones, B Cob, L Webb, R Benges, D Benges, R Hardingham, M Ellis, G Tremble, C Williams, A Parker, J Rolls, S Rolls, H Moore, N Fear, A Knowles, K Nicholson, V Dutton, R Hansen, C Hansen, M Miller, R Fernandes, B Cugley, M Cugley, B Barnfield, M Barnfield, M Moles, A Mills, J Mills, A Webster, M Webster, J Armstrong, J Armstrong, M Bradley, D Bradley, E Danvers, L Danvers, F Reid, J Reid, K McKenzie, J Cebular, M McDonald, J McDonald (Respondents) |
APPLICATION NUMBER: | APL309 -13 |
MATTER TYPE: | Appeals |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Stilgoe, OAM Dr Cullen, Member |
DELIVERED ON: | 8 April 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MANUFACTURED HOMES – SITE RENT– where appeal allowed – where appeal tribunal required to calculate site rent – where fresh evidence provided –calculation of appropriate site rent appropriate R v War Pensions Entitlement Appeal Tribunal (1933) 50 CLR 228 Pickering v McArthur [2005] QCA 294 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Sherrard v Jacob, Yilditz [1965] N.I.L.R. 151. |
APPEARANCES and REPRESENTATION (if any): | |
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
- [1]The respondents are residents in Hazelmere Village, a manufactured home park at Hervey Bay.
- [2]In August 2012, the park owner, M & T Entriken Pty Ltd, sent a notice to residents advising that the site rental was being reviewed to market. Entriken advised that, from 4 October 2012 (“Increase Day”), the site rent would increase from $142 per week to $160 per week.
- [3]The respondents applied to the Tribunal for a review of this site rental increase. On 20 June 2013, the Tribunal ordered that the site rental be set at $147 per week.
- [4]Entriken filed an application for leave to appeal or appeal. By a decision dated 16 July 2014, the appeals tribunal granted leave to appeal. Because Entriken filed fresh evidence in support of its application for leave to appeal, and because the application raised some issues for which there was insufficient evidence, the appeals tribunal allowed the parties to file further evidence. That evidence is now before this appeals tribunal. It should be considered within the framework of the original grounds for appeal.
The bowling green
- [5]The learned Member reduced the site rent because the bowling green was not operational. The bowling green was operational on 4 October 2012 (“Increase Day”). The learned Member was not entitled to deduct $1.30 for the non-operational green. On the learned Member’s analysis, the site rent should have been at least $148.30.
- [6]At the hearing, the respondents conceded that any rent reduction of $1.30 should be limited to the time the green was out of operation. Because this dispute has been ongoing for some time, we must make a finding about the period to which that discount should apply. In his statement filed 12 August 2014, Mr Entriken stated that the green was unplayable for 43 weeks and partly playable (75% playable) for a further 4 weeks.
- [7]The respondents disputed Mr Entriken’s statements. They say that the green is, even now, not of competition standard and, therefore, the reduction should still apply. Mr Entriken filed a further statement, annexing the Bowls Australia Construction guidelines. That document states[1] that the length of the green shall be between 31 and 40 metres and each rink shall be between 4.3 metres and 5.8 metres wide. Mr Entriken states the length of the green is 32.1 metres long, which is within the Bowling Australia guidelines. We accept that evidence. We also accept Mr Entriken’s evidence of the time the green was unplayable.
- [8]Therefore, we find that the site rent should have been reduced by $1.30 for 43 weeks and by $0.32 ($1.30 x 25%) for a further 4 weeks. These reductions will apply to those residents who lived in the village between 15 October 2012 and 7 September 2013.
Comparable parks
- [9]We took issue with Mr Routledge’s role in the proceedings as both expert, and advocate. We observed that none of the so-called experts had engaged in an expert conclave, as is required. We also observed that there was a real doubt about whether the experts were, in fact, experts.
- [10]The Tribunal is not bound by the rules of evidence[2] and may inform itself in any way that it considers appropriate[3]. This does not mean that the Tribunal can ignore the rules of evidence[4] but it does allow the Tribunal to accept evidence that might not be admissible as expert evidence in a Court[5].
- [11]Although there may not be a recognised field of specialty in site rent calculation, certain opinion evidence, garnered through a period of actual experience, may be admissible as direct evidence of the facts asserted therein, even in court proceedings.[6] On this basis, and accepting that this is a Tribunal that frequently addresses legal concerns of non-legally trained persons such as the residents here, we will receive and consider the impact of this evidence.
- [12]The evidence at the hearing has been modified by fresh evidence. At the hearing, the site rent for Sugar Coast Village, a comparative village, was said to be:
2010 | $127.27 per week |
2011 | $133.00 per week |
2012 | $139.65 per week |
- [13]Mr Ahlfeld, director of the company that owns Sugar Coast Village filed a statement on 12 August 2014. He says that those figure were exclusive of GST. He says that, when GST is added, the rent paid by residents was:
2010 | $133.64 per week |
2011 | $140.32 per week |
2012 | $147.33 per week |
- [14]The relevance of this change is that learned Member accepted Mr Routledge’s evidence that Sugar Coast was an inferior park[7]. Although we have some doubts about Mr Routledge’s evidence, Mr Brown had the same view. That park was also due for a rent review. Therefore, on any view, the new site rent for Hazelmere Village should have been somewhat more than $147.33.
- [15]Mr Brown considered Torquay Waters inferior but Mr Gees thought the park was comparable. Its site rent was $149.10. Both Messrs Brown and Gees agreed that Noble Lakeside was not comparable.
Site size
- [16]The learned Member did not consider site size. The site in Hazelmere Village range between 225m2 and 412m2. The sites in Torquay Waters are all smaller. The sites in Sugar Coast are 240m2, so some are larger and some are smaller.
- [17]Mr Entriken filed further evidence about this issue. He states that, of 98 sites in Hazelmere Village, 37 sites are 225m2. He states that, of those 37, 12 back onto the water, 23 back onto parkland and 2 are opposite lake front homes. We are therefore prepared to accept that the majority of Hazelmere Village are bigger than, or superior to, the sites at Sugar Coast.
Future market reviews
- [18]Since the hearing on 3 May 2013, the future market reviews for other sites have occurred. The results, therefore, are no longer speculative. However, as Entriken submitted and we accepted, the Tribunal can only look at events prior to Increase Day. We can look at whether or not, at that time, site rents for comparable parks were close to an increase. Sugar Coast was due for a rent review. Therefore, its site rent of $147.33 may be lower than would otherwise be expected and, therefore, not be directly comparable.
Conclusion
- [19]The determination of site rent is not a precise science. Taking into account all factors and, in particular, the comparable sites, we find the appropriate site rent should be $154.77.
Footnotes
[1] Clause 9.3.4.
[2] QCAT Act s 28(3)(b).
[3] QCAT Act s 28(3)(c).
[4] See R v War Pensions Entitlement Appeal Tribunal (1933) 50 CLR 228 at 256.
[5] Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [85] per Heydon JA.
[6]Sherrard v Jacob, Yilditz [1965] N.I.L.R. 151.
[7] Alexander Nicholson, David Swire and Ronald Brooks v M & T Entriken Pty Ltd trading as M & T Entriken Property Trust [2013] QCAT 716 at [30].