Hammond Village Operations Pty Ltd v Richard Homans
[2023] QCATA 142
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- Unreported Judgment
- Hammond Village Operations Pty Ltd v Richard Homans[2023] QCATA 142
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Hammond Village Operations Pty Ltd v Richard Homans[2023] QCATA 142
Hammond Village Operations Pty Ltd v Richard Homans[2023] QCATA 142
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Hammond Village Operations Pty Ltd v Richard Homans & Ors [2023] QCATA 142 |
PARTIES: | HAMMOND VILLAGE OPERATIONS PTY LTD (applicant) v RICHARD HOMANS & ORS (respondent) |
APPLICATION NO/S: | APL083-23 |
APPLICATION ORIGINATING NO: | OCL050-20 |
MATTER TYPE: | Appeal |
DELIVERED ON: | 15 November 2023 |
HEARING DATE: | 9 October 2023 |
HEARD AT: | Brisbane |
DECISION OF: | Member Matthews KC |
ORDERS: |
|
CATCHWORDS: | APPEAL – FRESH EVIDENCVE – STATUTORY INTERPRETATION – MATTER OF LAW NOT RAISED OR NOT CONSIDERED BELOW Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(1), s 142(3)(b) Manufactured Homes (Residential Parks) Act 2003 (Qld), s 69D, s 70A |
APPEARANCES & REPRESENTATION: |
|
Applicant: | Mr Pitt (solicitor) |
Respondent: | Mr Homans as lead respondent |
REASONS FOR DECISION
Procedural Background
- [1]On 23 January 2023, the Tribunal delivered reasons for decision upon an on the papers hearing of an application by Mr Richard Homans as lead applicant to set aside notices of increase in site rent dated 27 November 2019 given to occupants of the homeowners in a residential park governed by the Manufactured Homes (Residential Parks) Act 2003 (“the Act”).
- [2]That decision, by order 4, set aside notices based upon a market review of site rent on the ground of want of consultation pursuant to s 69D of the Act. It ordered, by order 5, that Hammond Village Operations Pty Ltd (“Hammon Village”) repay any overpayment of site rent to Mr Homans and four other nominated applicants and such other applicants who received the notices based on market review since any increase in rent had been paid.
- [3]Otherwise, the Tribunal confirmed, by order 6, the increase of site rent set out in notices of increase dated 27 November 2019 which notices relied upon a CPI increase in accordance with the formulae in the homeowners’ individual site agreements.
- [4]From that decision, Hammond Village has applied for leave to appeal (if necessary) or appeal filed 27 March 2023 (within 28 days of receipt of the written reasons) together with an application to stay orders 4 and 5 of the Tribunal’s decision filed the same date. The stay application was granted. Directions were given by a Senior Member of the Tribunal on 28 March 2023 for procedural steps to occur prior to the application for leave to appeal or appeal being heard.
Factual Background
- [5]At the commencement of the hearing of the application for leave to appeal or appeal, both Mr Pitt and Mr Homans on behalf of the respondents accepted that the matters articulated in the notice of appeal of appeal and Hammond Village’s submissions were a matter of law and that, accordingly, leave to appeal was not required.[1] Those submissions were, in my view, correct.
- [6]It was also accepted at the outset of the hearing that neither Hammond Village nor Mr Homans had in any way flagged or made submissions to the Tribunal concerning the engaging of s 70A of the Act. Thus, the principal thrust of the appeal was an argument not raised below but, in my opinion, once the statutory threshold of a finding is made under s 69D of the Act, it incumbent upon the Tribunal to thereafter consider the discretionary matters and procedural powers under the later section.
- [7]Mr Homans’ written submissions included reference to further material and fresh evidence of matters subsequent to the relevant time frame. As no application had been filed to rely on such material, I held that Mr Homans could not rely upon that material on the appeal.
- [8]It was confirmed by Mr Pitt of Hopgood & Ganim appearing for Hammond Village that as appeared in the applicant’s submissions,[2] that Hammond Village did not take issue with the Tribunal’s finding that it did not consult with the Homeowners Committee as required by s 69D of the Act[3] and indicating that the issue was whether the consequence of that finding ought to have been the engaging of s 70A of the Act which provides a caveat in certain discretionary circumstances against the fatality of a market review site rent increase.
- [9]It was accepted by both Mr Pitt and Mr Homans that the Tribunal’s decision included an accurate distillation of the background facts. For that reason I adopt those paragraphs[4] of the decision as accurately reflecting the background to the original application and the references to the Act as follows:
[1] Mr Homans is the lead Applicant in this matter. Mr Homans and the other Applicants claim to be homeowners[5] in a residential park[6] governed by the Manufactured Homes (Residential Parks) Act 2003 (Qld) (the Act). Homeowners own manufactured homes,[7] which are positioned on sites[8] in the residential park. The park owner[9] owns the land, common areas and communal facilities built on the land. There are 247 sites at this residential park. Homeowners enter into individual site agreements with the park owner[10] in respect of the land on which their home is situated and their use of the common areas and communal facilities. The site agreement provides for the homeowner to pay site rent and for how the rent is to be reviewed. The Act also provides for how rent is to be varied.[11]
[2] Applicants other than Mr Homans were formally joined as Applicants.[12] Since then Sheila Aitken and Lyn Gullifer were formally removed as Applicants.[13] The spelling of some of the Applicants’ names have been amended at the request of Mr Homans. On the basis of my review of the documents filed I amend the Tribunal record further from ‘Graham Patoors’ to ‘Graham Pastoors’ and find that Lyn Gellately remains an Applicant.[14] Mr Homans advised the Tribunal that Glenda Botica withdrew from the proceedings.[15] No formal withdrawal has been received by the Tribunal and therefore Ms Botica remains an applicant.
[3] The Applicants seek to set aside Notices of Increase in Site Rent dated 27 November 2019 (Notices). Some of the Notices rely upon a market review of site rent[16] and others CPI. All Notices seek to increase the site rent from 1 January 2020. Examples of Notices are in evidence before me but apart from the examples there is little specific evidence of which type of Notice was provided to each of the Applicants.
[4] Some copies of site agreements have been filed by the Applicants and others by the park owner. Some of the site agreements filed appear incomplete because pages appear to be missing[17] and one has not been received.[18] I am unable to make specific findings in relation to all or indeed most Applicants.
[5] The Applicants bear the onus of satisfying me of their contentions.
[6] The Applicants disputed the site rent increase.[19] No agreement was able to be reached through negotiation[20] or mediation.[21] The Applicants applied to the Tribunal[22] and seek orders setting aside the increase[23] and for a refund of the increase paid since 1 January 2020 and the difference in site rent increases since. They say that the park owner failed to comply with the Act and the Applicants’ site agreements regarding the rent increases.
[7] It is not controversial that the park has been in operation for many years and has been owned by different park owners over the years. Several different site agreements are in place. Some of the site agreements provide for market review in certain years with CPI increases in other years and others only provide for CPI increases. There are a number of CPI increase formulae in different site agreements.”
Submissions
- [10]Hammond Village’s written submissions set out the sections of the Act relevant to this appeal but in light of the concession that there was no challenge to the factual finding of a want of proper notice under s 69D, it is not necessary to further consider that section noting, however, that absence of proper notice to the Committee renders it mandatory for the rent rise to be determined as invalid. That is by use of the word “must” as contained in s 69D(2) of the Act.
- [11]That invalidity however may be remedied under s 70A which provides as follows:
70A Tribunal may appoint independent valuer for market review of site rent
- This section applies if—
- the park owner for a residential park gives a home owner a general increase notice for a proposed increase in the site rent based on a market review of site rent; and
- the home owner applies to the tribunal under section 70(3).
- The tribunal may appoint an appropriately qualified and independent registered valuer to help the tribunal in relation to the application including, for example, by—
- giving the tribunal a written valuation for a market review of site rent; or
- giving expert evidence in a proceeding for the application.
- The tribunal may appoint a valuer under subsection (2) if satisfied—
- at least 1 of the following applies—
- consultation for preparing a market valuation for the market review of site rent was not carried out as required under section 69D or was not adequate;
- the general increase notice was not accompanied by a market valuation for the market review of site rent under section 69E(2);
- the general increase notice or market valuation accompanying the notice (the relevant market valuation) does not clearly provide for how the increased site rent has been worked out;
- the site rent is proposed to be increased other than in accordance with the relevant market valuation;
- the relevant market valuation does not reflect a reasonable market review of site rent in the circumstances, including, for example, because the basis or methodology for the review is not reasonable; and
- for a general increase notice for the same general increase day given to the home owners for at least 5 sites in the residential park (the notified sites)—the home owners for the threshold number of the notified sites have applied to the tribunal under section 70(3).
- If the tribunal appoints a valuer under subsection (2), the park owner must pay the valuer’s costs of helping the tribunal, including—
- the costs of preparing a written valuation, if any, required by the tribunal; and
- the fees and allowances for giving evidence, if required, in a proceeding.
- However, subsection (4) applies only if before appointing the valuer, the tribunal—
- advises the park owner of the amount the park owner is likely to be required to pay under subsection (4); and
- gives the park owner the opportunity to be heard on the matter of appointing the valuer.
- In this section—
threshold number, of the notified sites, means the lesser of the following—
- the number at least equal to 25% of the number of the notified sites;
- 20.
- [12]It can be seen that the Tribunal “may” appoint an appropriately qualified and independent valuer to consider the market review of site rent if the Tribunal is satisfied relevantly that notice or consultation for preparing a market valuation for the market review of site rent was not carried out as required under s 69D or was not adequate. Hammond Village submits that the proper construction of the Act when read as a whole[24] requires such a consideration, as the legislature has placed a discretionary caveat on the invalidity of a market site rent increase for want of compliance with s 69D.
- [13]Not every act performed in breach of a statutory pre condition is necessarily invalid and of no effect. The statutory context must be considered. As the High Court said in Project Blue Sky:[25]
“Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.”
- [14]Mr Homans’ submissions were that the use of the mandatory term “must” in relation to the consultation required by s 69D has to be compared with the discretionary word “may” as contained in s 70A. Whilst there is some force in his contention, it is my view that it does not answer the fundamental question as to the construction of the sections as a whole in accordance with the objects of the Act.
- [15]Hammond Village, in its written submissions, submitted as follows at [31]:
“In the face of the finding that Hammond Village had not complied with section 69D of the MHRP Act, the Tribunal below ought to have turned to section 70A of the MHRP act and considered its application. If it had done so, the Tribunal would have found that both section 70A(3)(a)(1) and section 70A(3)(b) were satisfied, such that an independent valuer could be appointed to remedy the non-compliance. However, the Tribunal below failed to do so and did not consider section 70A at all in its Decision – either in its construction of section 69(3) or in its determination of the consequence of the non-compliance with section 69D.”
- [16]Finally, the submissions of Hammond Village relevantly referred to the decision below the Tribunal at [58]:
“I am not satisfied that the Valuation report should not be accepted.”
- [17]And then at [68]:
“If it was not for the failure to consult with the committee as required by the Act I would accept the Valuer’s evidence of market rent.”
- [18]It is to be noted that there was no valuation evidence led by the respondent before the Tribunal and notwithstanding the acceptance of the valuation evidence actually led by Hammond Village, the Tribunal did not go on to consider the engaging by the finding of invalidity of the discretionary matters in s 70A.
- [19]Neither party raised the question before the Tribunal. However, in my view it ought to have been considered by the Tribunal whether on the valuation evidence it accepted the invalidity could be remedied or, alternatively, to seek further independent valuation evidence and submissions from the parties.
Disposition
- [20]For the reasons above, it is my view that the Tribunal fell into appellable error in not considering the engagement of s 70A of the Act and how the Tribunal’s discretion thereunder was to be exercised.
- [21]In the circumstances I allow the appeal. As conceded by Hammond Village on the hearing and by reason of the orders sought in the application for leave to appeal or appeal, in my view the matter should be remitted to the Tribunal for hearing and consideration of the applicability in the factual circumstances found of s 70A of the Act.
- [22]Accordingly, my orders are as follows:
- Allow the appeal.
- Remit the matter to the Tribunal for the purpose of making such orders as it considers appropriate pursuant to 70A(2) of the Act.
- Stay orders 4 and 5 made by the Tribunal on 23 January 2023, pending the outcome of the remitted hearing.
Footnotes
[1] That concession was in accordance with the written submissions of Hammond Village at paragraphs 9, 10, 11 and 12 and the authorities referred to therein, including Franklin & Ors v Burleigh Town Village Pty Ltd [2014] QCATA 183.
[2] At paragraph 5.
[3] Those submissions referring to the Tribunal’s reasons for decision at [44]-[45].
[4] At [1]-[7].
[5] Manufactured Homes (Residential Parks) Act 2003 (Qld), s 8 (the Act).
[6] Ibid, s 12.
[7] Ibid, s 10.
[8] Ibid, s 13.
[9] Ibid, s 11.
[10] Ibid, s 14.
[11] Ibid, Part 11, ss 68 – 74A.
[12] Direction 1 made 9 September 2020.
[13] Direction 1 made 20 November 2020.
[14] Not included in header to Directions made 16 July 2021.
[15] 5 October 2020.
[16] The Act, Schedule 2, definition ‘market review of site rent’.
[17] Sites 58, 182 and 222.
[18] Site 62.
[19] The Act, s 70.
[20] Ibid, s 107.
[21] Ibid, s 108.
[22] Ibid, s 115, s 116.
[23] Ibid, s 70(4).
[24]Project Blue Inc v Australian Broadcasting Authority (1988) 194 CLR 355 at 381, per McHugh, Gummow, Kirby and Hayne JJ.
[25] Project Blue Sky (supra) at 389 per McHugh, Gummow, Kirby and Hayne JJ.