PJD Group Pty Ltd v Both[2017] QCATA 94

This appeal 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. [1]
   This appeal concerns whether the terms of s 77 of the Manufactured Homes (Residential Parks) Act 2003 (Qld) (MHRPA) permit a park owner to impose charges on home owners through the park rules.

The Facts

2. [2]
   PJD Group Pty Ltd own and operate the Esk Caravan Park containing sites utilised for manufactured homes, caravans, campers and tourists. The respondents are the owners of manufactured homes located at the park and have site agreements with PJD Group.  For the purposes of the MHRPA, the area of land on which the manufactured homes are located, including the common areas, is a “residential park”; PJD Group is the “park owner” and the respondents are the “home owners”. The Esk Caravan Park is not only a residential park within the meaning of the MHRPA, but is used for other purposes.
3. [3]
   A dispute has arisen between the park owner and home owners in relation to the imposition of certain charges on the home owners. The proposed charges are to be incorporated into additional park rules proposed by the park owner in the following terms:

Rule 4(h) One vehicle per site unless otherwise arranged.  Extra vehicles               incur costs.

Rule 17(c) There is no fee for day visitors to your home.  Day visitors must               however pay to use park facilities.

Rule 17(e)  A visitors’ fee is charged for all overnight visitors.  Overnight               visitors must register and pay before 6.00 pm on the night of               intended stay.

Rule 23(a)  Costs and fees referred to in this document are displayed in the               office and on the Manufactured Homeowners/Residents Notice               Board located in the small Camp Kitchen Area.  Increases to               listed fees will be no more than yearly and consistent with the               conditions set out in the [MHRPA] for general rent rises.

4. [4]
   The imposition of the charges associated with rules 4(h), 17(c) and 17(e) was the subject of earlier proceedings before the Tribunal.^[1]  In the earlier proceedings, the Tribunal found that the charging of an amount to visitors, and for the parking of an extra vehicle, was a proposed change to the park rules and required the park owner to follow the statutory process prescribed under the MHRPA for varying park rules.  The Tribunal found the park owner had failed to comply with the statutory process and therefore the changes were void and of no effect.
5. [5]
   Following those proceedings, the park owner gave notice as required pursuant to the MHRPA of its intention to vary the park rules to impose the charges including the insertion of an additional rule relating to the display of the charges and the process to be followed to vary those charges.  The park liaison committee process approved the proposed rules.
6. [6]
   The home owners then made an application to the Tribunal for an order declaring the proposed rules unreasonable.  On the hearing of the application, the Tribunal determined that:

   1. the park owner is unable in or through the park rules to impose charges on home owners which are not provided for in the written and signed site agreements; and
   2. in any event, paragraphs 4(h), 17(c), 17(e) and 23(a) of the proposed park rules were unreasonable and void.
7. [7]
   PJD Group appealed the decision under s 142 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).  The grounds of appeal were firstly, that the member’s construction of s 77 of the MHRPA, which provides for the making of park rules, was wrong and secondly, that the member erred in holding that by virtue of s 25(4) of the MHRPA, the site rent and other charges must be set out in the site agreement, and in particular, the signed portion of it.  Both parties agree the questions raised on appeal are questions of law only.
8. [8]
   No appeal is brought against the member’s finding that, in any event, the imposition of charges for an extra vehicle and for visitors in the park was unreasonable and therefore void.
9. [9]
   An appeal on a question of law may be made without leave.^[2]  In deciding an appeal against a decision on a question of law only, the Appeal Tribunal may confirm, amend, or set aside the decision and substitute its own decision or, if appropriate, return the tribunal for reconsideration.^[3]

Scheme of the MHRPA

10. [10]
    The MHRPA regulates the operation of residential parks.  The main object is set out in s 4 and is said to be the regulation and promotion of fair trading practices in the operation of residential parks.
11. [11]
    Under the MHRPA, the park owner is required to ensure a site agreement is written to the extent, and in the way, required by s 25.  Section 25 sets out the requirements for the site agreement. Relevantly, included in the requirements is that the agreement must state the site rent and other charges payable under the agreement, how and when the site rent and other charges are payable and how and when the site rent may be varied, including that the Tribunal may make an order increasing or decreasing the site rent.^[4] 
12. [12]
    By s 19, the site agreement is taken to include as terms the responsibilities of the home owners set out in s 16; the responsibilities of the park owner set out in s 17; the park rules for the residential park; the terms of any orders made by the Tribunal about the site agreement; and other duties imposed upon, or entitlements given to, the park owner or home owner under the MHRPA.^[5] 
13. [13]
    The home owners’ responsibilities under the site agreement include that the home owner pay the site rent and other charges payable by the home owner under the agreement,^[6] and otherwise comply with the agreement and park rules.^[7]
14. [14]
    The park owner’s responsibilities in relation to a home owner include complying with the site agreement and the park rules.
15. [15]
    Section 21 of the MHRPA provides that:

The special terms of a site agreement are the terms of the agreement that are not—

1. standard terms; or
2. terms taken to be included in the agreement under section 19.

16. [16]
    The effect of s 21 of the MHRPA is to make all terms of the site agreement, other than standard terms and terms taken to be included in the agreement under s 19 (which terms include the park rules), special terms of the agreement.
17. [17]
    Regulations may prescribe terms for inclusion in a site agreement; such terms as prescribed are the standard terms.^[8]  There are currently no standard terms prescribed.
18. [18]
    The MHRPA requires a park owner to give a prospective owner for a site the home owners’ information document for the park, the proposed site agreement and the park rules and any proposal for change in the park rules.  A site agreement is not to be entered into by the park owner until the disclosure documents have been given to the prospective home owner.^[9]
19. [19]
    Section 77 allows the park owner to make park rules. It provides as follows:

1. The park owner for a residential park for which site agreements are in force may make rules about the use, enjoyment, control and management of the park.
2. However, rules may be made only about –

1. the use and operation of the communal facilities; and
2. the making and abatement of noise; and
3. the carrying on of sporting and other recreational activities; and
4. the speed limits for motor vehicles; and
5. the parking of motor vehicles; and
6. the disposal of refuse; and
7. the keeping of pets; and
8. other things prescribed under a regulation.

20. [20]
    No “other things” have been prescribed under a regulation.
21. [21]
    A regulation may also prohibit a stated type of park rule or a stated type of special term in a site agreement.^[10]  Currently there are no prohibited park rules nor prohibited special terms.
22. [22]
    The MHRPA makes provision for the park rules to be changed. This procedure ultimately allows the park owner or home owner to apply to the Tribunal for an order declaring a proposed rule reasonable or unreasonable.^[11]
23. [23]
    The special terms of a site agreement may be varied at any time while the agreement is in force.^[12] A variation of a special term is void unless written and signed by the parties to the agreement.^[13]  If the parties are unable to agree a variation of a special term proposed by one party, on application by that party, the Tribunal may make such orders as it considers appropriate about the proposed variation.^[14]
24. [24]
    The MHRPA contains special provisions for the variation of the site rent and provides that the site rent may only be varied in the way stated in Part 11 of the MHRPA. 
25. [25]
    There is no specific provision in the MHRPA for the variation of “other charges” payable under the site agreement.  Such charges, like the site rent, are special terms of the site agreement.  In the absence of a specific provision, the “other charges” may be varied in accordance with the provisions for the variation of special terms.^[15]
26. [26]
    The MHRPA also provides that if there is a site agreement dispute, either party to the dispute may apply to the Tribunal.^[16]  However, the dispute must fall within the definition provided in the MHRPA.^[17]
27. [27]
    Section 86 is the quiet enjoyment provision. It provides as follows:

1. The park owner for a residential park must take reasonable steps to ensure a home owner has quiet enjoyment of the home owner’s site in the park and the common areas.
2. The park owner, or park manager, for a residential park must not interfere with the reasonable peace, comfort or privacy of a home owner in using the home owner’s site in the park or the common areas.

Gilmore & Ors v Lawson

28. [28]
    In this appeal, the park owner says its position is supported by the decision of the Tribunal in the earlier proceedings.^[18]
29. [29]
    There, by reference to the various site agreements between the park owner and home owners and the multiple versions of the park rules, the Tribunal found that the site agreements and park rules did not make provision for the imposition on the home owners of charges for overnight visitors and extra parking.  It was further found that the park rules did not specify the amount to be charged.
30. [30]
    In those circumstances, the Tribunal found that the charging of an amount per night for visitors and an amount for extra parking were each a “proposed change” to the park rules.  As the procedures required under the MHRPA for the changing of the park rules were not followed, the charges were declared void and of no effect.
31. [31]
    It is true that the member inferred from the copies of the park rules provided that there was an expectation by the home owners and park owner that the park owner could charge an amount for visitors and an amount for extra parking.  However, it is clear from the decision that the validity of those charges being imposed through the park rules was not in issue.  Rather, having found that the charges amounted to a change in the park rules, the focus was on whether the process to implement the change had been followed.
32. [32]
    The issue squarely raised in the proceedings giving rise to this appeal, however, was whether a charge not specified in the site agreement can be imposed under the park rules.  In those proceedings, the Tribunal member expressed the view that she did not agree with the earlier decision of the Tribunal that it is reasonable to infer an expectation that the park owner could charge an amount for overnight visitors and extra parking.  In any event, in the first proceedings the existence of an expectation did not validate what was otherwise invalid.

Basis of decision of primary Tribunal

33. [33]
    In declaring that the charges could not be included in or through the park rules, the Tribunal member had referred in particular to ss 77 and 25 and concluded that, as she interpreted the legislative scheme, s 77 did not provide for the charging of fees.  The Tribunal held that the charging of fees must be set out “in the signed portion of the written site agreement.”  The member said the charging of fees cannot be contained in park rules, or in this case, in another document, the “Price List”, which is merely referred to in the park rules and subject to change at the discretion of the park owner.
34. [34]
    The member, in referring to the park owner’s assertion that the charges proposed will only be increased in line with rent increases and can therefore be challenged, stated that there is no mechanism in the site agreement or the MHRPA for the challenge asserted to exist.  It was said the absence of such a mechanism to challenge allowed a park owner to potentially introduce new charges, which were not specified in the park rules, and allowing that to occur would be inconsistent with the legislative scheme.
35. [35]
    Those comments appear to have been based on the view formed by the Tribunal member that “other charges” were a standard term of the site agreement.  As indicated earlier in this decision, other charges are a special term of the site agreement.  As such, the MHRPA does provide a mechanism for challenging variations of charges included in the site agreement.  This construction, however, does not negate the member’s conclusion that “all rent and other charges must be set out in the s 25(4) part of the site agreement.” The member relied on additional reasons in reaching that conclusion. 

Submissions relating to Section 77

36. [36]
    The park owner submitted that s 77 entitles it to make park rules which impose fees and charges on home owners so long as they are about the use, enjoyment, control and management of the park with respect to the matters set out in s 77(2).  In its written submissions, the park owner referred to various dictionary definitions of the terms “use, enjoyment, control and management”.
37. [37]
    The park owner submitted that by reference to the dictionary meanings, park rules may be made to “regulate, restrain or direct influence over the use and operation of communal facilities.”  The park owner said s 77 contains no restriction on the type of rule that may be made to achieve those ends and contains no bar against the imposition of a fee or charge. 
38. [38]
    The park owner stated s 77 allows a park owner to make a park rule about anything to do with the subject matter outlined in s 77(2) provided it is not inconsistent with the MHRPA.  The park owner submitted the wording used by the legislature is broad and is not restrictive in terms of the matters that could possibly relate to the items listed in s 77(2) and be regulated by park rules.

Construction of Section 77 

39. [39]
    Statutory interpretation requires the court to give meaning to the words used by the legislature.  In Project Blue Sky Inc v Australian Broadcasting Authority,^[19] the majority of the High Court said:

Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision.  But not always.  The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.^[20]

40. [40]
    In Fearnley v Finlay,^[21] Jackson J (with whom the others members of the Court of Appeal agreed), referring to decisions of the High Court,^[22] stated:

The method of the modern law of statutory interpretation requires that the “task of statutory construction must begin with a consideration of the text itself” and “[s]o must the task of statutory construction end”, whilst also not forgetting that “the modern approach to statutory interpretation…insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise.”^[23]

41. [41]
    Section 14A(1) of the Acts Interpretation Act 1954 (Qld) 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.”  Dawson J in Mills v Meeking,^[24] in considering the Victorian provision,^[25] gave the following explanation:

[T]he literal rule of construction, whatever the qualifications with which it is expressed, must give way to a statutory injunction to prefer a construction which would promote the purpose of an Act to one which would not, especially where that purpose is set out in the Act…

The approach required… needs no ambiguity or inconsistency; it allows a court to consider the purposes of an Act in determining whether there is more than one possible construction.

42. [42]
    Even where the MHRPA contains a statement of purpose, such a statement of purpose must be understood by reference to other provisions contained in the legislation;^[26] like any other provision in legislation, a purpose or objects clause must be interpreted in its context.
43. [43]
    In the present case, the MHRPA itself sets out its main object as being “to regulate, and promote fair trading practices in, the operation of residential parks” so as “to protect home owners from unfair business practices” and “to enable home owners, and prospective home owners, to make informed choices by being fully aware of their rights and responsibilities in their relationship with park owners”.^[27]
44. [44]
    The MHRPA further provides that the main object will be achieved by declaring particular rights and obligations of park owners and home owners, facilitating the disclosure of information to prospective home owners, facilitating participation by home owners in the affairs of the park, regulating the site agreement and providing ways to resolve site agreement disputes.^[28]
45. [45]
    An examination of the context and purpose indicates that the clear intention of the MHRPA is that the site agreement will be at the forefront of the relationship between a park owner and a home owner.  The MHRPA is prescriptive about the contents of the site agreement.^[29]  The MHRPA requires that it must be signed by the home owner and park owner.^[30] 
46. [46]
    Section 25 requires the site agreement to state the site rent and other charges payable by the home owner to the park owner.  The fact that specific provision is made in s 25 for charges (other than rent) to be set out in the site agreement further supports the home owner’s submissions.  There is no logical reason why the legislature would intend that these charges could be set out in the park rules.
47. [47]
    The site agreement can be varied, but the MHRPA requires that any agreed variation be in writing and if any proposed change is not accepted that the proposer apply to the Tribunal which may make any order it considers appropriate.^[31]  Changes in rent are highly regulated.^[32] 
48. [48]
    The proposed manner, as detailed in rule 23(a), by which the charges are to be made known by displaying the charges in the office and on the noticeboard, and the manner in which increases may be allowed, is certainly inconsistent with the objects set out in ss 4(1) and 4 (2)(a)-(c) and the scheme of the MHRPA under which s 77 operates. 
49. [49]
    Setting out the charges on a noticeboard, including variations in those charges, is also inconsistent with home owners being informed of their rights and obligations and full disclosure being made to prospective home owners in the manner prescribed by s 29. 
50. [50]
    In its submissions, the park owner, despite the wording of the proposed rule 23(a), suggested the charges will only be varied in accordance with the mechanism for the variation of the park rules.  The proposed wording of rule 23(a), however, was not expressed in those terms; rather it refers to “increases to the listed fees will be no more than yearly and consistent with the conditions set out in the [MHRPA] for general rent rises.”  The general rent provisions are contained in a separate part of the MHRPA to the provisions relating to the changes in the park rules.
51. [51]
    An important fact, moreover, is that the park rules may only be made about the subjects listed in sub-section (2).  There is nothing in that list which suggests that park rules could be made imposing a charge in relation to any of the listed matters.  Nor is it possible to interpret the list as extending to rules about visitors staying overnight.  It is possible, subject to any other provisions of the MHRPA, for rules to be made about the use and operation of communal facilities by visitors or the parking of motor vehicles within the park by visitors; but it is not possible to extend that list to include visitors staying overnight in the manufactured home of the home owner.
52. [52]
    Section 77(1) makes no reference to charges and the general words themselves do not encompass that concept.  The dictionary definitions of the general words relied upon by the park owner do not encompass the notion of a charge either. 
53. [53]
    Section 77, understood alone, is better understood as a rule making power which enables the park owner to regulate the behaviour of people, rather than entitling it to impose charges relating to the subject matters listed.

Additional Submissions by Park Owner

54. [54]
    The further submissions of the park owner relating to the construction of the MHRPA can be dealt with shortly.  Firstly, the park owner relied upon the absence of a regulation prohibiting a rule imposing charges to make the submission that this meant a charge could be included in the park rules.^[33]  However, the fact that a regulation has not been made prohibiting a rule imposing charges clearly cannot expand the affirmative powers contained in s 77.
55. [55]
    Secondly, it was submitted on behalf of the park owner that the charges for visitors to use the facilities and stay overnight were intended to be imposed only upon the visitor and not the home owner.  The fact is that under the MHRPA the home owner is obliged to comply with the park rules^[34] and that includes the home owners ensuring their visitors do, or do not do, certain things.  No relationship is established between the park owner, the rules and any visitors of the home owner.
56. [56]
    Finally, it was submitted on behalf of the park owner that if the charges were made under the site agreement there was no mechanism to change them. It was submitted this could have detrimental economic consequences for the park owner and failed to recognise one of the other stated objects of the MHRPA being “encouraging the continued growth and viability of the residential park industry in the State”.^[35] 
57. [57]
    The “other charges”, like the rent, however, are special terms of the site agreement and the MHRPA does provide a mechanism for the variation of special terms.    The park owner is not left in a position where the amount of “other charges” included in the site agreement could never be varied. 

Section 86

58. [58]
    During the course of considering the appeal, submissions were sought from the parties as to whether s 86 had any impact upon the issues in dispute. The section imposes an obligation upon the park owner to ensure the home owner has quiet enjoyment and requires the park owner not to interfere with the reasonable peace, comfort or privacy of a home owner.
59. [59]
    It was said by the respondents that the imposition of charges for visitors interfered with the right of quiet enjoyment.
60. [60]
    The park owner has correctly acknowledged that the park rules must not be inconsistent with the MHRPA.  However, s 86 does not explicitly limit the park owner’s right to make park rules about the park, nor does it specifically deal with the entitlements to or of visitors, let alone charges for the use of park facilities by visitors or them staying overnight.
61. [61]
    In our view, as long as the rules are within power, and subject to the right to ultimately apply to the tribunal with respect to their reasonableness, the section would not, of itself, have any role to play in the construction of s 77.  Section 86 may inform the consideration of the reasonableness of a park rule; however that is not an issue for determination on this appeal.

Second Ground of Appeal

62. [62]
    There remains to be dealt with the submissions of the park owner relating to the second ground of appeal.  The park owner submitted that at various stages in the judgment the member referred to the requirement that the charges should be set out in the “signed portion” of the site agreement. 
63. [63]
    The park owner makes four submissions in support of this submission: firstly, that certain terms (relating to the home owners’ responsibilities, park owner’s responsibilities, park rules, Tribunal orders and other duties referred to in the MHRPA)  are taken by s 19 to be part of the site agreement (without any further step, such as a signature, being required); secondly, that special terms form part of a site agreement (see s 21); thirdly, that s 25(4)(k) only requires that the agreement be signed, not that every page or the pages setting out the fees and charges should be signed; and fourthly, that the Form 2 does not require every page to be signed.^[36]
64. [64]
    It is clear, however, that it is precisely because certain terms are taken to be part of the agreement outside of s 25(4) that it is relevant to refer to the signed portion of the agreement. Special terms are required to be part of the written agreement.^[37] Nowhere does the member actually say that each page of the agreement should be signed. In any event, it is clear that the member considered that the charges should be clearly set out in the site agreement which the legislation required be signed. The member clearly considered that it would be insufficient for charges to be specified in another unrelated document (such as contemplated by the fourth proposed site rule).  No error has been demonstrated in the reasoning.
65. [65]
    The park owner also submitted that the charges did not have to be in writing and contained in the site agreement.
66. [66]
    In support of this proposition, it again relied upon the provisions of s 19; which require certain matters, in particular the home owner’s responsibilities contained in s 16(e), to be part of the agreement. This submission is circular. Section 16(e) provides that it is the home owner’s responsibility:

To pay the rent and other charges payable by the home owner under the agreement.

67. [67]
    This provision obliges the home owner to pay the charges, but only those specified in the agreement. It tends to reinforce, rather than diminish, the view that charges should be specified in the agreement.
68. [68]
    Finally, the park owner argued that s 25(7) of the Act provides that “nothing in this section affects the enforceability of a site agreement that is not written”.
69. [69]
    This provision is not relevant in the present instance as the site agreement was written, and did not contain any term relating to charging residents for second vehicles, visitors for using park facilities or visitors staying overnight. Moreover, there is no suggestion that prior to the proposed changes, there was any agreement between the parties relating to the subject matter of the proposed changes to the park rules.
70. [70]
    Given that there was a signed site agreement, the member was correct in concluding that charges of the kind proposed should have been included in it for them to be valid.

Conclusion

71. [71]
    In our view, on a close consideration of the text of s 77 in the context and purpose of the MHRPA, s 77 does not permit the imposition of charges through the park rules.  The imposition of any charges must be contained in the site agreement.
72. [72]
    The appeal should be dismissed.
73. [73]
    Orders are made that the appellant file and serve its submissions on costs by Wednesday, 11 October 2017 and that the respondents file and serve their submissions on costs by Wednesday, 25 October 2017.