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Stockland Property Services Pty Ltd v Scouller[2019] QCATA 117

Stockland Property Services Pty Ltd v Scouller[2019] QCATA 117

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Stockland Property Services Pty Ltd v Scouller [2019] QCATA 117

PARTIES:

STOCKLAND PROPERTY SERVICES PTY LTD

(applicant)

 

v

 

JOHN LESLIE SCOULLER

(respondent)

APPLICATION NO/S:

APL268-18

ORIGINATING APPLICATION NO/S:

OCL079-17

MATTER TYPE:

Appeals

DELIVERED ON:

6 August 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown, Presiding
Member Lumb

ORDERS:

  1. The respondent’s application to adduce fresh evidence is refused.
  2. The appeal is dismissed.
  3. The parties shall file (and serve on the other party), within 14 days of the date of these orders, written submissions (no longer than 4 pages) in respect of the question of costs of the appeal.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – ADMISSION OF FURTHER EVIDENCE –  where appeal on question of law and subject to finding of fact below – whether new material relevant to appeal

REAL PROPERTY – RETIREMENT VILLAGES – whether the Retirement Villages Act 1999 (Qld) permits charges for “other services”– where option to receive electricity service from a third party - whether electricity and water meter reading is a “general service” or “personal service”

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142, s 146

Retirement Villages Act 1999 (Qld), s 3, s 5, s 8, s 9s 12, s 102, s 102A, s 103, s 107A, s 108 and the definitions of “general services”, “personal services” and “services charge” in the Schedule.

Kerr v Paku and Anor [2011] QCATA 157

Mannix v Chris Neale Constructions Pty Ltd [2011] QCATA 222

Nielsen v Runaway Bay Village Pty Ltd [2011] QCAT 658

Nolan v Kawana Island Retirement Village Pty Ltd [2009] QCCTRV 6

Taylor v The Owners - Strata Plan No 11564 (2014) 253 CLR 531

Underwood v Queensland Department of Communities (State of Queensland) [2013] 1 Qd R 252

APPEARANCES:

 

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

Introduction

  1. [1]
    This is an appeal against a decision of the Tribunal delivered on 11 September 2018 (“the Decision”).[1]  The Tribunal ordered that the appellant in this appeal (“Stockland”), with effect from 21 September 2018, cease invoicing residents of “Fig Tree Village” for the cost of the services of Network Energy Services (“NES”) for meter reading, invoice preparation and associated tasks (“the Services”), other than as a general services charge.
  2. [2]
    Fig Tree Village is a retirement village run by Stockland.  The applicant below (Mr Scouller) is the respondent to this appeal.  Mr Scouller is a resident of Fig Tree Village.
  3. [3]
    The dispute between the parties concerns the proper construction of the Retirement Villages Act 1999 (Qld) (“the RVA”) (in particular, the defined phrases “general services” and “personal services”) and whether the Services fall within one or other (or neither) of those definitions.

The grounds of appeal

  1. [4]
    In its Application for leave to appeal or appeal filed on 9 October 2018, Stockland set out the following grounds of appeal:

The Tribunal, having correctly made the findings of fact that a resident has the option to procure electricity from a third party supplier and therefore avoid the liability to pay [Mr Scouller’s] charges on account of meter reading [at 47], made an error of law in finding that such a service was a ‘general service’ as that term is defined in the Retirement Villages Act 1999 (Q) (‘Act’).

The Tribunal also erred in interpreting the proper meaning of the defined terms ‘general service’ and ‘personal service’, and the distinction between the two (at [24] to [26]).

As a matter of law (statutory interpretation), a service that is optional (such that if a resident exercises their right not to receive the service and therefore has no obligation to pay for it) cannot be a ‘general service’. It must be a ‘personal service’ as that term is defined in the Act or an ‘other charge’.

  1. [5]
    Given that Stockland’s appeal is confined to alleged errors of law in the Decision, it is unnecessary for Stockland to seek the Appeal Tribunal’s leave to appeal.[2]
  2. [6]
    What are the relevant facts in respect of which the proper statutory construction of the RVA is to be applied?

The relevant facts

  1. [7]
    The Tribunal Member made the following relevant factual findings:
    1. (a)
      certain costs associated with the supply of electricity and water to residents of Fig Tree Village were said to total $23,573 for 2017/2018 and were carried out by NES in reading the electricity and water meters, preparing invoices for residents for their electricity and water consumption, collecting the amounts charged “and so on”;[3]
    2. (b)
      the Services are provided under a contract between Stockland and NES;[4]
    3. (c)
      in the 2016/2017 year, Stockland anticipated that the NES costs would be $23,196 and Stockland made provision for this anticipated expenditure in its general services budget.  Half of the anticipated cost was included in the estimated expenditure of $129,000 shown for “Water Rates/Charges”, while the other half was included in the estimated expenditure of $80,600 for “Electricity”;[5]
    4. (d)
      those figures of $129,000 for water and $80,600 for electricity were estimated total expenditure for Fig Tree Village, for both use by residents in their villas and use by the Village in common areas; and residents were billed for consumption of electricity and water in their villas by way of utilities invoices, based on metered usage, rather than through the “Residence Charges”;[6]
    5. (e)
      the proceeding below related to a change introduced with the 2017/2018 budget, in that Stockland adopted a different way of dealing with electricity and water costs by removing the estimated cost of electricity and water to be used by residents in their villas, leaving only estimates for use in common areas;[7]
    6. (f)
      Stockland removed the anticipated NES costs expenditure from the general services budget and decided to bill the residents for the cost via their electricity and water invoices;[8]
    7. (g)
      Stockland obtained the electricity used in Fig Tree Village, in both common areas and villas, from a supplier; there was a “parent meter”; and Stockland on-supplied electricity to residents, with their consumption monitored through individual meters (and a similar system operated for water);[9]
    8. (h)
      midway through the 2017/2018 year, residents became able to procure electricity from third party suppliers because it had become mandatory under national energy rules to ensure that all consumers could choose their supplier.  Residents choosing a third party supplier would have to arrange for connection and for a “smart meter” (which could be read remotely) to be installed in their villa.  However, residents in fact do not exercise their right to procure electricity from third party suppliers “because the Village supplies electricity at a much lower cost than market suppliers because it generates no profit from supply”;[10]
    9. (i)
      NES prepares the utilities invoices that are issued in the name of Fig Tree Village to residents.  Invoices are issued approximately every two months.  Each invoice details the charged amount for “Electricity Usage” by the resident for the relevant period, based on the number of kilowatt hours of electricity used in the resident’s villa.  Similarly, each invoice details the charged amount for “Water Usage” based on the number of kilolitres of water used in the resident’s villa.  There is then an “Electricity Supply” charged amount, calculated on a daily rate.  This is, at least partly, for the NES costs.  The charge relates also to water supply; part of the fee paid to NES is for reading the water meters and invoicing for water consumption;[11]
    10. (j)
      the amounts of electricity and water supplied to a villa are metered, but the reading of meters is not itself a metered service.  The cost comes not from a meter but from price negotiations between Stockland and its chosen service provider;[12]
    11. (k)
      Mr Scouller has not engaged NES to read his meters, nor has Stockland engaged NES to read Mr Scouller’s meters.  Stockland has engaged NES to read all the meters in Fig Tree Village, to prepare all the bills “and so on”;[13]
    12. (l)
      some of the tasks performed by NES relate to Village-wide matters rather than individual metering and bill preparation;[14]
    13. (m)
      if any residents opted out of the current electricity arrangement, and started purchasing electricity from outside suppliers, those residents would be forced to contribute, through their Residence Charges, to the cost of meter reading for residents who have not opted out.[15]
  1. [8]
    In relation to the factual findings made by the Tribunal Member referred to at paragraph 7(a) above, in a letter from Stockland to residents at Fig Tree Village dated 6 April 2016[16] it was stated, amongst other things:

Fig Tree Village have appointed [NES] as our Embedded Network Manager so that our activities will remain compliant and legal. They perform this role for more than one hundred retirement villages including sixteen Stockland villages and they are the leaders in electricity on-selling in retirement villages. They will manage compliance as well as reading meters, producing bills, processing rebates, receiving payments for electricity and water and attend to resident queries about bills and usage.

[NES] meter readers will read the meters and issue a bill for electricity and water every second month and collect the payments on behalf of the village. The first meter read will occur at the end of this month. A range of payment options are available and a direct debit form will be included with the first bill for residents desiring to use that facility.

Fresh Evidence

  1. [9]
    On the appeal, Mr Scouller seeks to rely on further evidence not adduced below, namely fee statements issued by Stockland as evidence that Stockland have allowed three residents (two remaining in Fig Tree Village) to opt out of the Village telephone service but continued to pay the respective fees for such service.
  2. [10]
    As to the test to be applied, in Underwood v Queensland Department of Communities (State of Queensland)[17] it was said by Muir JA (Dalton J agreeing):[18]

[38]  The Appeal Tribunal, in deciding whether to receive the applicant’s further evidence, applied part of the definition of ‘reopening ground’ in s 137 of the QCAT Act. Under that section and s 138 a party is given a right to apply to QCAT for a proceeding to be reopened if a ‘reopening ground exists’. A reopening ground relevantly exists where:

‘… the party would suffer a substantial injustice if the proceeding was not reopened because significant new evidence has arisen and that evidence was not reasonably available when the proceeding was first heard and decided’.

[39]  Under s 139, where a reopening ground exists and where that ground could be ‘effectively or conveniently dealt with by reopening the proceeding’ the Tribunal may grant the application to reopen. Sections 136 to 141 inclusive, however, do not apply to appeals. Section 143 of the QCAT Act which provides for applications for leave to appeal is silent as to the Appeal Tribunal’s ability to receive additional evidence. Section 147, which relates to appeals to the Appeal Tribunal on a question of fact or on a question of mixed fact and law, provides that ‘The appeal must be decided by way of rehearing, with or without the hearing of additional evidence as decided by the appeal tribunal’. The test contained in the definition ‘reopening ground’ in s 137, as a general proposition, is a useful enough guide for the Appeal Tribunal to apply on application for leave, but it would not be correct in law for the Tribunal to fetter its discretion by rigidly applying a test which expressly applies to proceedings at first instance but not to appeals.’

  1. [11]
    The Tribunal’s power to allow fresh evidence on appeal is not a mechanism by which parties can repair the holes in their original case.[19]
  2. [12]
    In our view, the application to adduce further evidence should be refused.  In particular, we accept Stockland’s contention that the material is irrelevant to the matters in dispute on the appeal.  As noted above, Stockland’s case turns on a question of law and is subject to the findings of fact made below.  The treatment of an entirely different service is immaterial to the Appeal Tribunal’s consideration of whether or not the Services provided by NES fall within the definition of “general services”.  The treatment of some residents in relation to a telephone service has no bearing on the characterisation of the Services provided by NES.  We also accept the contention by Stockland that the introduction of such evidence would enlarge the nature of the issues in dispute; it would be necessary to canvass the circumstances in which the service was provided and the additional circumstances in which the residents in question opted out of the telephone service.  No substantial injustice would be suffered by Mr Scouller if the evidence were not admitted.

The task of statutory construction

  1. [13]
    The task of statutory construction was articulated by Gageler and Keane JJ in Taylor v The Owners - Strata Plan No 11564:[20]

[65] Statutory construction involves attribution of legal meaning to statutory text, read in context. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning … But not always. Context sometimes favours an ungrammatical legal meaning. Ungrammatical legal meaning sometimes involves reading statutory text as containing implicit words. Implicit words are sometimes words of limitation. They are sometimes words of extension. But they are always words of explanation. The constructional task remains throughout to expound the meaning of the statutory text, not to divine unexpressed legislative intention or to remedy perceived legislative inattention. Construction is not speculation, and it is not repair.

[66] Context more often reveals statutory text to be capable of a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural. The choice between alternative meanings then turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies.

Relevant provisions of the RVA

  1. [14]
    The RVA contains the following provisions relevant to this appeal:
    1. (a)
      The main objects of [the RVA] are—
  1. (a)
    to promote consumer protection and fair trading practices in operating retirement villages and in supplying services to residents by—
  1. (i)
    declaring particular rights and obligations of residents and scheme operators; and
  1. (ii)
    facilitating the disclosure of information to prospective residents of a retirement village to ensure the rights and obligations of the residents and scheme operator may be easily understood; and
  1. (b)
    to encourage the continued growth and viability of the retirement village industry in the State.[21]
  1. (b)
    A retirement village is premises where older members of the community or retired persons reside, or are to reside, in independent living units or serviced units, under a retirement village scheme.[22]
  2. (c)
    A person is a retirement village scheme operator if the person, alone or with someone else, controls the scheme’s operation or purports to control the scheme’s operation.[23]
  3. (d)
    A resident of a retirement village is a person who has a right to reside in the retirement village and a right to receive 1 or more services in relation to the retirement village under a residence contract.[24]
  4. (e)
    A service agreement is an agreement made between a person and a scheme operator under which general services or personal services are to be supplied for or to the person or someone else when the person or other person becomes a resident of a retirement village.[25]
  5. (f)
    Part 5 of the RVA is headed “Operation of schemes for, and management of, retirement villages”.
  6. (g)
    Division 6 of Part 5 of the RVA is headed “Charges for personal services”.  The only section contained in that division is s 102 which is headed “Charges for personal services for former residents” and provides:

If a resident of a retirement village who is liable to pay a charge for personal services vacates the village, the scheme operator must not levy the charge against the resident—

  1. (a)
    after the period of notice given under section 52 or 53 ends; or
  1. (b)
    if the period of notice given under section 52 is extended—for more than 14 days after the end of the extended period of notice; or
  1. (c)
    if the resident’s residence contract is terminated because the resident dies—for more than 28 days after the residence contract is terminated. Maximum penalty—540 penalty units.
  1. (h)
    Division 7 of Part 5 of the RVA is headed “Charges for general services” and contains eight sections including the following:
    1. by s 102A, relevantly:
  1. (1)
    The scheme operator must adopt a budget (the general services charges budget) for each financial year for charges for general services.
  1. (2)
    For subsection (1), the general services charges budget must—

 (a)  allow for raising a reasonable amount to provide the general services for the financial year; and

 (b)  fix the amount to be raised by way of contribution to cover the amount.

  1. (ii)
    by s 103, relevantly:
  1. (1)
    The amount a resident of a retirement village may be charged for general services under a residence contract must be worked out in the way stated in the contract.
  1. (2)
    A scheme operator must not charge a resident of a retirement village for general services an amount more than the amount worked out under subsection (1).

 Maximum penalty—200 penalty units.

  1. (3)
    The scheme operator must not include, or provide for, in a residence contract in the charge for general services an amount or component, however described, that is payable for or towards replacing the retirement village’s capital items.

 Maximum penalty—200 penalty units.

  1. (4)
    However, subsection (3) does not apply to an existing residence contract.
  1. (5)
    Subject to section 104, a resident of a retirement village is responsible for only the resident’s proportion of the general services charges for the period the resident resides in the resident’s accommodation unit.

  1. (iii)
    by s 108, relevantly:
  1. (1)
    A scheme operator may offer residents a service not already supplied under the scheme, for which a services charge is to be, or may be, made, only if the residents agree to it being supplied by special resolution at a residents meeting.
  1. (2)
    Subsection (1) does not apply to—

 (a)  a personal service; or

 (b)  a service that is the same as a service already supplied under the scheme and introduced as a cost-effective alternative after consideration under section 107A; or

 (c)  another service, if the residence contract of each of the residents states that the service was proposed to be supplied.

  1. (3)
    The scheme operator must get at least 2 quotes for supplying the service from qualified tradespersons appropriate for the service.
  1. (4)
    However, the requirement to get at least 2 quotes does not apply if, for exceptional reasons, it is not practicable to get more than 1 quote.

  1. (i)
    The Dictionary of the RVA includes the following definitions:
  1. (A)
    general services are services supplied, or made available, to all residents of a retirement village.

Examples of general services—

  • management and administration
  • gardening and general maintenance
  • a shop or other facility for supplying goods to residents
  • a service or facility for the recreation or entertainment of residents
  1. (B)
    personal services are optional services supplied or made available for the benefit, care or enjoyment of a resident of a retirement village.

Examples of personal services—

  • laundry
  • meals
  • cleaning the resident’s accommodation unit
  1. (C)
    services charge means a charge payable by a resident for a general or personal service under a residence contract.

The proper construction of the RVA

  1. [15]
    Although Stockland’s central contention is that the charges in question are charges for “personal services”, Stockland has not formally abandoned an alternative contention, which was its primary contention below, that the charges for the Services constitute an “other charge”.[26]

“other charge” / “other service”?

  1. [16]
    Stockland’s contention at first instance, that the RVA contemplated “other charges”, relied on the decisions in Nolan v Kawana Island Retirement Village Pty Ltd [2009] QCCTRV 6 (‘Nolan’) and Nielsen v Runaway Bay Village Pty Ltd [2011] QCAT 658 (‘Nielsen’).  In Nolan it was said (and accepted in Nielsen) that there could be a “third category of service” that was neither a “general service” nor a “personal service”.  Each case was purportedly concerned with a service provided to “an exclusive group of residents” in the particular retirement village.  It was said that there was nothing in the RVA (or the public information documents in question) that “prevented” the existence of such a third category of service.
  2. [17]
    In our respectful view, the RVA does not contemplate a charge for services other than “general services” or “personal services”. 
  3. [18]
    First, there is no definition of “other service”; only “general services” and “personal services”.
  4. [19]
    Secondly, a “service agreement” is one which encompasses an agreement under which “general services” or “personal services” are to be supplied.[27]  No other services are contemplated by this provision.
  5. [20]
    Thirdly, the phrase “services charge”[28] means a charge payable by a resident for a “general or personal service” under a residence contract.  That definition does not contemplate a charge payable for any other type of service.
  6. [21]
    Fourthly, while s 108(2)(c) of the RVA refers to “another service”, we consider that, in context, this is a reference to another “general service”.  Subsection 108(1) provides for a scheme operator to offer residents a service not already supplied under the scheme for which a “services charge” is, or may be, made.  Subsection 108(2) provides exceptions to s 108(1).  The first exception is a service which is a “personal service” (s 108(2)(a)).  Subsection 108(2)(b) excepts a cost-effective alternative service supplied after consideration is given under s 107A (which section expressly refers to a “general service”).  In the context of s 108(1) and s 108(2)(a), (b) and (c), we consider that:
    1. (a)
      the reference to “another service” must be a reference to a service for which a “services charge” may be made (that is a charge for a general or personal service);
    2. (b)
      there is no justification for construing the phrase “another service” in s 108(2)(c) as referring to some different type of service that is not a “general service” (a “personal service” being expressly excepted by s 108(2)(a)); and
    3. (c)
      the reference in section 108(2)(c) to “another service” is a reference to a service referred to in a public information document given to each of the residents, thus a service proposed to be supplied to, or made available to, all of the residents and thereby a “general service”.
  7. [22]
    Insofar as it was held in Nolan and Nielsen that there may be a “third category of service” under the RVA, we respectfully consider that to be incorrect.
  8. [23]
    In our view, it would be anomalous to construe the RVA as permitting charges for an “other service”.  It would result in a situation where the RVA would regulate, albeit in a relatively limited way, charges for “personal services” and would regulate, in a far more extensive way, charges for “general services” but would not regulate, at all, charges in respect of so-called “other services”.  This would not achieve one of the main objects of the RVA, namely the promotion of consumer protection and fair practices in operating retirement villages.  Such an interpretation would also run counter to the definitions of “service agreement” and “service charges”.  In our view, the RVA contemplates only “general services” and “personal services”.
  9. [24]
    The remaining question is whether the charges for the Services were charges for “general services” or “personal services” on the facts as found by the Tribunal Member.

General services or personal services?

  1. [25]
    In our view, the demarcation line between the two types of services is not one that is clearly drawn in the RVA, particularly given that both definitions contemplate, in part, services that are “made available” to residents.  In the case of general services, reference is made to “services” that are supplied or made available to “all residents” of a retirement village.  In the case of “personal services”, reference is made to “optional services” supplied or made available for the benefit, care or enjoyment of “a resident” of the retirement village.  It is difficult to conceive of a service which would ordinarily be provided by a retirement village scheme operator that was not intended to be for the “benefit, care or enjoyment” of village residents. 
  2. [26]
    The task is complicated by two matters.  First, the RVA defines neither “services” nor “optional services” (or the word “optional”[29]).  Secondly, the inclusion of the following example in the definition of “general services”: “a shop or other facility for supplying goods to residents”.  A resident of a retirement village may choose never to buy goods from such shop or facility; the resident has the option of purchasing goods from such shop but is not compelled to do so.  In that sense, use of the shop is “optional”.  However, the legislature appears to contemplate that the shop itself (as a means of supplying goods) is an example of a general service because it is made available to all residents of the retirement village regardless of whether some may choose not to use such a facility (as may also be the case in relation to recreational or entertainment facilities such as a cinema or gym).
  3. [27]
    Stockland’s submissions focus on the choice of individual residents to “opt out” of the receipt of the supply of electricity through a supplier arranged by Stockland for the residents as a whole.
  4. [28]
    Stockland contends that the distinction between “general services” and “personal services” is that general services are made available for the benefit of all residents generally and residents cannot opt out of paying for them, regardless of whether they take the benefit of those services; while personal services are made available to or consumed by particular residents and are optional, such that a resident can opt not to receive or pay for them.[30]  Stockland also submits that “general services” are, by definition, “compulsory”.[31]  It submits that if one resident of Fig Tree Village opted out of receipt of the supply of electricity by Stockland, the Services could no longer be “general services” because they would not be supplied to “all” residents.[32]
  5. [29]
    We reject Stockland’s contentions.
  6. [30]
    The framework of the RVA, in particular Division 7 of Part 5, does not indicate that the legislature intended that a service captured by the express terms of the definition of  “general services” should be excluded from the definition merely because one (or more) of the residents has (or have) an option (not exercised) to receive, and pay for, the same services provided by a third party.
  7. [31]
    In our view, on the proper construction of the RVA:
    1. (a)
      the phrase “optional services” within the definition of “personal services” requires a positive election on the part of a resident of a retirement village in order to receive such services;
    2. (b)
      “personal services” are services supplied or made available for the benefit, care or enjoyment of one or more residents of a retirement village only at the request (or election) of the resident;
    3. (c)
      “general services” are services supplied, or made available to, all residents of a retirement village without request;
    4. (d)
      an ability to “opt out” of payment for a particular service does not, of itself, alter the characterisation of services that otherwise fall within the definition of “general services”.
  8. [32]
    On the facts as found, the Services (as provided by NES) are services presently supplied (and made available) to all residents of Fig Tree Village without request.  In our view, the Services are “general services” within the meaning of that phrase in the RVA.
  9. [33]
    This is sufficient to dispose of Stockland’s appeal.
  10. [34]
    Nevertheless, there is an additional difficulty with Stockland’s case.
  11. [35]
    Stockland submits that on the basis of the decision in Scouller v Stockland Property Services Pty Ltd [2017] QCAT 347, the relevant “service” being provided to the resident in the present case is the provision of electricity (and the administrative tasks surrounding that service in respect of which the charges are made a part of the provision of that service) and a resident will have no liability to pay for the reading of the meter if the resident exercises his or her option to purchase electricity from another supplier.[33]
  12. [36]
    However, the Services provided by NES are not solely limited to the reading of electricity meters.  The Services involve the reading of water meters and other administrative tasks, some of which relate to Village-wide matters rather than individual metering and bill preparation.[34]   There is no suggestion that, even if a resident obtained electricity supplied by a third party supplier, the reading of water meters of individual residents would not continue.  Similarly, the administrative tasks would continue. 
  13. [37]
    The evidence does not, as we understand it,[35] establish that the payments to NES would be reduced by any identifiable amount, if at all, in the event that one or more residents of Fig Tree Village elected to have electricity supplied by a third party supplier.  The factual finding set out at paragraph 7(m) above, unchallenged on appeal, is that the charge for the Services would continue to be paid by all residents.  To the extent that Stockland suggests that the Tribunal made a finding of fact that a resident who opts to procure electricity from a third supplier may “therefore avoid the liability to pay [Stockland’s] charges on account of meter reading”,[36] we consider this to be incorrect and to be inconsistent with the factual finding noted above.  In that event, the Tribunal could not have been satisfied that the charges the subject of the primary application were other than charges for “general services”.
  14. [38]
    For the above reasons, we consider that the Tribunal Member correctly concluded that the Services provided by NES constitute a “general service” as defined in the RVA and, pursuant to s 146 of the QCAT Act, the appeal should be dismissed.

Orders

  1. [39]
    The Appeal Tribunal orders that:
    1. (a)
      the respondent’s application to adduce fresh evidence is refused.
    2. (b)
      the appeal is dismissed;
    3. (c)
      the parties shall file (and serve on the other party), within 14 days of the date of these orders, written submissions (no longer than 4 pages) in respect of the question of costs of the appeal.

Footnotes

[1] Scouller v Stockland Property Services Pty Ltd [2018] QCAT 308.

[2]  See s 142 of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”).

[3] Scouller v Stockland Property Services Pty Ltd [2018] QCAT 308, [1].

[4]  Ibid, [3].

[5]  Ibid, [4].

[6]  Ibid, [8].

[7]  Ibid, [10].

[8]  Ibid, [11].

[9]  Ibid, [17].

[10]  Ibid, [18].

[11]  Ibid, [22].

[12]  Ibid, [35].

[13]  Ibid, [43].

[14]  Ibid, [46].

[15]  Ibid, [47].

[16]  Appeal Record Book, page 249.

[17]  [2013] 1 Qd R 252.

[18]  Ibid,  [38]-[39] (emphasis added).

[19] Kerr v Paku and Anor [2011] QCATA 157,  [7], cited with approval in Mannix v Chris Neale Constructions Pty Ltd [2011] QCATA 222,  [9] per Peta Stilgoe, Senior Member, Justice Alan Wilson, President agreeing.

[20]  (2014) 253 CLR 531, 556-7, [65]-[66].

[21] Retirement Villages Act 1999 (Qld), s 3(1).

[22]  Ibid, s 5(1).

[23]  Ibid, s 8.

[24]  Ibid, s 9.

[25]  Ibid, s 12(1).

[26]  Stockland’s primary submissions on appeal, paragraph 48; cf Stockland's submissions below, paragraphs 18 and 22.

[27]  RVA, s 12.

[28]  This phrase is used in e.g. s 94(1)(d) and s 108(1) of the RVA.

[29]  The term “optional” is defined in the Macquarie Dictionary as “1. Left to one’s choice. 2. Leaving something to choice.”

[30]  Stockland's primary submissions on appeal, paragraph 32.

[31]  Ibid, paragraph 30(a).

[32]  Ibid, paragraph 37.

[33]  Stockland's primary submissions on appeal, paragraph 42.

[34]  See paragraphs 7(a), 7(l) and 8 above.

[35]  Stockland’s submissions do not address this issue.

[36]  See the Grounds of Appeal.

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Editorial Notes

  • Published Case Name:

    Stockland Property Services Pty Ltd v Scouller

  • Shortened Case Name:

    Stockland Property Services Pty Ltd v Scouller

  • MNC:

    [2019] QCATA 117

  • Court:

    QCATA

  • Judge(s):

    Senior Member Brown, Presiding Member Lumb

  • Date:

    06 Aug 2019

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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