Wain v Palm Lake Resort Pty Ltd
[2022] QCATA 110
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- Unreported Judgment
- Wain v Palm Lake Resort Pty Ltd[2022] QCATA 110
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Wain v Palm Lake Resort Pty Ltd[2022] QCATA 110
Wain v Palm Lake Resort Pty Ltd[2022] QCATA 110
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Wain & anor v Palm Lake Resort Pty Ltd [2022] QCATA 110 |
PARTIES: | jeanette wain & Raymond Westcott (applicants/appellants) v palm lake resort pty ltd (respondent) |
APPLICATION NO/S: | APL272-21 |
ORIGINATING APPLICATION NO/S: | OCL007-20 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 1 August 2022 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member D J McGill SC |
ORDERS: |
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CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – Appeal – relevant evidence overlooked – whether appeal on a question of law – whether breach of rules of natural justice – appeal allowed Manufactured Homes (Residential Parks) Act 2003 (Qld) s70 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28(2)(a), 142(3)(b) Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 Commissioner for Liquor and Gaming v Farquhar Corporation Pty Ltd [2018] QCA 202 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Osland v Secretary, Department of Justice (2010) 241 CLR 320 Pivovarova v Michelsen (2019) 2 Q R 508 Powell v Queensland University of Technology [2018] 2 Qd R 276 Priddy v M & T Entriken Pty Ltd [2020] QCAT 107 Seirlis v Queensland Building and Construction Commission [2020] QCATA 37 |
APPEARANCES & REPRESENTATION: | 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
- [1]The appellants are home owners at the Palm Lakes Resort owned by the respondent, and pay site rent to it. The resort is governed by the Manufactured Homes (Residential Parks) Act 2003 (Qld) (“the Act”). They received from the respondent a notice dated 17 May 2019 advising a general increase in site rent, said to be by way of a market review under the terms of their site agreement. The appellants disputed this increase, and applied to the Tribunal, under the Act s 70(3), s 115. On 26 February 2021, the Tribunal dismissed the application. The appellants filed an application for reopening that decision, but on 13 September 2021 a Senior Member ordered that the application proceed as an application for leave to appeal and appeal. That is what is before me.
- [2]This was an appeal from a decision of a Member of the Tribunal exercising the original jurisdiction of the Tribunal. Under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“the QCAT Act”) s 142 the appellants have a right to appeal on a question of law, to be decided in accordance with the QCAT Act s 146, but require leave to appeal on a question of fact, or mixed fact and law: the QCAT Act s 142(3)(b). On the face of it the appellants are not seeking leave to appeal, so the appeal must be dealt with under s 146.
Decision of Member
- [3]The Member who dismissed the application gave reasons on 9 March 2021 which noted that the issue was whether the increase was excessive: [3]. That the appellants disputed a valuation report obtained by the respondent was acknowledged, but the Member said that no independent expert evidence was adduced to the contrary, making it difficult to make findings to the contrary, and that the appellants had chosen not to obtain their own valuation report: [5]. The Member addressed some specific submissions of the appellants, but concluded that they had not shown that the increase was excessive, and dismissed the application.
Consideration
- [4]The problem with the Member’s reasons is that the appellants had obtained, and filed, their own valuation evidence, which was attachment JWR2 to a statement of evidence filed 5 August 2020, said to be in accordance with directions made on 31 July 2020. This was a report by a registered valuer which expressed the opinion that the rent payable prior to the increase was slightly higher than the market range for such rentals, so that no increase could be justified on the basis of an increase to market rent. The respondent replied to this “alternative valuation” by submissions filed on 17 August 2020, which included a reply by the valuer for the respondent, who did not agree with the appellants’ valuer, and gave reasons for disagreeing.
- [5]The appellants had previously applied to the Tribunal for the appointment of an independent valuer under the Act s 70A, but were not able to come within the requirements of s 70A(3).[1] There were then directions made on 26 June 2020 for statements of evidence to be filed by the parties and for a hearing on the papers. No further directions, given before the matter was decided by the Member, appear on the file.
- [6]The respondent in submissions referred to the report of the appellants’ valuer as a “critique.” Although it did contain some criticism of the respondent’s valuation, it did contain an expression of opinion by the valuer as to the market value of the sites in the resort. It clearly meets the description of independent valuation evidence. The respondent submitted that, for various reasons, this was not independent expert evidence adduced to the contrary. It was said that it was not an assessment of the site rent, but it said that the rent before the increase was outside the range in the market, which was evidence that no increase was justified by the market. Whether the valuer had inspected the subject or other properties was a matter which went to weight, not to the character of the evidence. It is obvious from the report that the opinion was based on a comparison of site rents at other sites. As to the arguments in the submissions for the respondent paragraph 50(d)(2), it is sufficient to say that the evidence of the appellants’ valuer does not cease to be independent expert evidence because there may be arguments to counter it.[2] It was submitted that the fact that the evidence was not mentioned by the Member does not mean it was not considered, which is true in the abstract, but in this case inconsistent with the Member’s reasons. I consider that the irresistible inference from them is that the Member either overlooked this evidence completely, or did not read it carefully.
- [7]On its face the author of the report was independent of the parties to this dispute, and was a registered and experienced valuer. It is fair to say that the report to some extent built on the report of the respondent’s valuer, and was not as detailed as that report, but it contained an expression of opinion as to the range of market site rent for comparable properties, and the opinion that no rent increase was justified.
- [8]The respondent submitted that the appellants required leave to appeal, and that failing to consider evidence or making findings of fact not open on the evidence was a question of mixed law and fact, citing Seirlis v Queensland Building and Construction Commission [2020] QCATA 37 at [6].[3] With all due respect to that Appeal Tribunal, I do not agree with that proposition. The passages from the High Court judgments cited to support it are authorities that there is no jurisdiction in the Federal Court to review findings of fact by an administrator or by the AAT[4] unless the finding is vitiated by error of law. Whether the Tribunal failed to consider relevant evidence raises a question of law.[5] Whether there has been an error of law, including whether a finding of fact was open on the evidence, raises a question of law.
- [9]The distinction between a question of fact and a question of law was considered by the Full Federal Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at [23] where the issue was whether a finding that someone carried on a particular type of business raised a question of fact or a question of law. The Court stated five propositions, the fifth being that whether facts fully found fall within the terms of a statutory provisions was generally a question of law, but went on to qualify that proposition, when the statutory term had its ordinary meaning. In that situation, whether a finding of fact was open on the evidence raised a question of law, but if on the evidence findings either way were reasonably open, the question of what finding to make was a question of fact.[6]
- [10]In view of the state of the evidence before the Member, the finding of fact, that the respondent’s valuation evidence was uncontradicted, was not open. Whether that was so is a question of law. Further, part of the obligation of the Tribunal was to comply with the rules of natural justice.[7] One aspect of that was to give the appellants a reasonable opportunity to present their case.[8] When that is to be done by a hearing on the papers, a fair hearing is one where the Tribunal has regard to relevant evidence filed by that party. It does not follow that every piece of evidence has to be addressed in the reasons for a decision, but to say that a particular category of evidence, regarded as important by the Tribunal, does not exist when there was in fact such evidence before the Tribunal does in my opinion involve a breach of natural justice. Whether there was such a breach is a question of law, because the issue is whether the matter was decided as required by law.
- [11]It follows that the appellants in this proceeding are appealing on a question of law, and do not require leave to appeal. On the other hand, on the evidence before the Tribunal more than one finding was reasonably open as to whether the site rent increase by the respondent was excessive. This is not a case where on the evidence only one finding was open as a matter of law. Apart from anything else, there was a conflict of expert evidence, and there were factual details in dispute between the parties as to the factual basis for the expert opinions, none of which was resolved by the Member. I have read the expert evidence, where both valuers use a comparison with site rents charged at other properties. They referred to aspects of that comparison, and it is sufficient to say that on the face of it there are parts of the evidence of the respondent’s valuer which I find at least curious, while at least some of the points made by the appellants’ valuer appear to have some substance. The powers available under the QCAT Act s 146 are limited when there are relevant facts not found by the Tribunal.[9] It follows that the matter has to go back to the Tribunal for re-hearing, before a different Member.
- [12]I should say that I agree with the proposition cited by the Member at [3] and quoted from Priddy v M & T Entriken Pty Ltd [2020] QCAT 107 at [18]. In Priddy the Member reviewed the various factors mentioned in s 70, and considered whether they impacted on the evidence of a valuer as to the market rent, before concluding that the appropriate approach under the Act was to accept the uncontradicted evidence of the valuer, and reduced the rent increase slightly to bring it into line with that evidence. In the present matter, at times in the reasons the Member spoke as if all that mattered was what was the true market rent,[10] but at [9] returned to the correct approach. Although s 70 does not state specifically the basis on which the Tribunal is to fix an amount of site rent, s 70(5) contains matters going beyond the question of what is a market rent, most notably in s 70(5)(k), whether the increase is fair and equitable in all the circumstances of the case.
- [13]The Member referred to the object in the Act s 4(3)(a), encouraging the growth and viability of the residential park industry. That is true, but another matter listed in s 4(2)(c)(iii) is “regulating the variation of site rent”, said to be one of the ways in which the main object of the Act (in s 4(1)) was achieved. The main object in s 4(1) identifies the Act as consumer protection legislation.
- [14]It may be worthwhile making one more point. Valuation evidence is opinion evidence, and seeks to quantify something which is inherently difficult to quantify, the “market value” of an interest in land. Market theory involves all sorts of assumptions about the nature of a market, including the interchangeability of goods, whereas interests in land are all in principle unique, although is some cases there are examples of interests which are very similar. For any particular parcel of land, there will be only one seller, and a sale usually reflects what that seller believes (on whatever basis) is the most that can be obtained for that land.
- [15]Evidence as to “market value” in this context is somewhat artificial, but is certainly admissible and should be considered unless shown to be deserving of no weight. Resolving conflicts of expert evidence is often a difficult matter, particularly if there is no good reason to attribute more weight to one expert than to another. The Tribunal can, in circumstances where there are two experts whose opinions differ as to market value, and no good reason to disregard one, take both into account and adopt a figure for market value between them, giving weight to each. The Tribunal is not limited to accepting one or other opinion. Of course, if one opinion is shown to be based on incorrect facts, or otherwise clearly erroneous, the position is different.
- [16]Sometimes having the experts meet and prepare a joint opinion, identifying the points on which they differ and those on which they agree, can be helpful, at least in focusing the Tribunal on the issues which divide them.[11] It may emerge that the difference is based on differing factual assumptions, but if the difference is just one of differing opinions based on the same facts and factual assumptions, it may well be a case where both opinions are deserving of weight.
- [17]For present purposes however what matters is that the Member failed to recognise that there was a conflict of expert evidence in this matter. As a result it was not decided according to law, and must be reheard. The resolution of that conflict, and any factual issues between the parties, will be a matter for the Member conducting the rehearing.
- [18]I assume no question arises of legal costs. The respondent should pay any filing fees paid on the application to reopen, but it appears that they were waived. The decision of the Appeal Tribunal is as follows:
- Appeal allowed.
- Decision of the Tribunal of 26 February 2021 set aside.
- The matter is remitted to the Tribunal for re-hearing by a different Member.
Footnotes
[1] Decision of a different Member, 19 May 2020. The requirements of that subsection are quite limiting.
[2] I am not at all sure that the proposition relied on, the fact that a new tenant or tenants have accepted the increased rent is conclusive that it reflects the market rent, is correct, even as to what is the true market rent. I would want to know at least what other sites were on the market. It is certainly not conclusive on an application under s 70 of the Act, where other factors are relevant.
[3] Two earlier decisions of the Appeal Tribunal were cited as well: Williams v Queensland Building and Construction Commision [2015] QCATA 138 at [6] and Mair Renovations v Miller [2016] QCATA 79 at [4]. Both state the same proposition in the same terms, and cite the same authorities.
[4] Under the Administrative Appeals Tribunal Act 1975 (Cth) s 44, or under the Administrative Decisions (Judicial Review) Act 19 (Cth).
[5]Commissioner for Liquor and Gaming v Farquhar Corporation Pty Ltd [2018] QCA 202 at [18]. I am conscious of the limitation on the passage quoted at [17] by the decision in Pivovarova v Michelsen (2019) 2 Q R 508 at [4].
[6] A proposition confirmed by the High Court in Comptroller-General of Customs v Pharm-A-Care Laboratories Pty Ltd [2020] HCA 2 at [41].
[7] The Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28(3)(a). See also s 28(3)(e).
[8]Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [61].
[9]Osland v Secretary, Department of Justice (2010) 241 CLR 320; Powell v Queensland University of Technology [2018] 2 Qd R 276 at [42] – [55], [143] – [146]; Pivovarova v Michelsen (2019) 2 Q R 508 at [9].
[10] Reasons [6], [7].
[11] QCAT Practice Direction No 4 of 2009 provides for conclaves and joint reports of experts.