Hammond Village Operations Pty Ltd t/as Gateway Lifestyle v Maddren
[2023] QCATA 35
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Hammond Village Operations Pty Ltd t/as Gateway Lifestyle v Maddren[2023] QCATA 35
- Add to List
Hammond Village Operations Pty Ltd t/as Gateway Lifestyle v Maddren[2023] QCATA 35
Hammond Village Operations Pty Ltd t/as Gateway Lifestyle v Maddren[2023] QCATA 35
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Hammond Village Operations Pty Ltd t/as Gateway Lifestyle v Maddren [2023] QCATA 35 |
PARTIES: | Hammond Village Operations Pty Ltd t/as Gateway Lifestyle (appellant) v fredrick maddren (respondent) |
APPLICATION NO/S: | APL054-22 |
ORIGINATING APPLICATION NO/S: | OCL026-20 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 30 March 2023 |
HEARING DATE: | 14 March 2023 |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Traves Member Gordon |
ORDERS: |
|
CATCHWORDS: | ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – CONTROL OF PARTICULAR MATTERS – RESIDENTIAL – CARAVAN PARKS AND MOVEABLE DWELLINGS – whether park owner has an immutable statutory entitlement to charge for sewerage use – whether the use of a utility can be ‘measured’ by calculating from known use of water from a separate meter – whether such points may be argued on this appeal Manufactured Homes (Residential Parks) Act 2003 (Qld), s 19(e), s 99 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(b) Maddren v Hammond Village Operations trading as Gateway Lifestyle [2022] QCAT 46 Regis Towers Real Estate Pty Ltd v The Owners of Strata Plan 56443 [2002] NSWCA 40 Summers v Repatriation Commission [2015] FCAFC 36 |
APPEARANCES & REPRESENTATION: | |
Appellant: | Anthony Pitt, special counsel of HopgoodGanim Lawyers |
Respondent: | Self-represented |
REASONS FOR DECISION
- [1]This is an appeal from a decision of a member of the tribunal about whether a residential park owner was entitled to charge a home owner for sewerage use. The member decided that the charge was improperly made, and ordered the park owner, Hammond Village Operations Pty Ltd t/as Gateway Lifestyle, to repay the sum of $711.16 to the home owner, Fredrick Maddren. The decision was given in writing with full reasons and was published as Maddren v Hammond Village Operations trading as Gateway Lifestyle [2022] QCAT 46.
- [2]In the decision the member considered whether the park owner had a contractual entitlement to charge for sewerage use. The member referred to the site agreement between the park owner and Mr Maddren which stated in clause 2.1 of the special terms:
The Home Owner agrees to pay all charges for the supply or use of electricity, gas, water, drainage and sewerage to the site while the Home Owner occupies the site, if those services are separately metered.
- [3]The member then considered whether as a matter of fact, the sewerage to the site was ‘separately metered’ within the meaning of this term in clause 2.1. He concluded that it was not and therefore was not chargeable under clause 2.1.[1]
- [4]In his application to the tribunal for the repayment of $711.16, Mr Maddren relied on section 99(2) of the Manufactured Homes (Residential Parks) Act 2003 (Qld) (Parks Act) which provides that a home owner may only be required to pay for the use of a utility at a site (and sewerage was one of the utilities) if the use is separately measured or metered.
- [5]The member also considered this, and decided that as a matter of fact, the sewerage at the site was not separately measured or metered and so it could not be charged as a utility because of section 99(2). This was a second reason therefore why the sewerage could not be charged to Mr Maddren.
- [6]Having found that Mr Maddren had been improperly charged for sewerage use because the charge was outside clause 2.1 (because the use was not separately metered) and because such a charge was not permitted by section 99(2) (because the use was not separately measured or metered) the member ordered the repayment to Mr Maddren of the amount he had paid for sewerage.
The Appeal
- [7]There are several points made in the notice of appeal, but in an oral hearing in the appeal Mr Pitt on the park owner’s behalf helpfully explained that the grounds of appeal reduced to two which can be briefly stated:
- (a)that the member should have construed the word ‘metered’ in clause 2.1 as meaning ‘measured or metered’ and the sewerage was measured;
- (b)that the member misconstrued section 99(2) of the Parks Act and despite having found that the sewerage was not metered, the member should have found that the sewerage was measured, and therefore permitted by this section.
- (a)
- [8]Both of these grounds of appeal are said to be appeals on questions of law only, and not appeals on questions of fact or mixed law and fact. For the Appeal Tribunal, this is important because by section 142(3)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) an appeal on a question of fact only or a question of mixed law and fact requires leave to appeal, but such leave is not sought.
- [9]For ground (a), Mr Pitt referred to provisions in the Parks Act restricting the freedom of home owners and park owners to make contractual arrangements and providing for the result of inconsistency between the provisions of the Parks Act and a site agreement.[2]
- [10]
- [11]Hence it is said that the charging clause 2.1 should be construed so that the park owner has a right to charge for sewerage use. The only way to achieve that, it is submitted, is to read the words ‘separately metered’ in clause 2.1 as ‘separately metered or measured’,[5] and here it could be said that if not metered, the sewerage was measured because it was calculated from the amount of water use which was separately metered.
- [12]One difficulty with this ground of appeal is that it is a point of law not raised in the tribunal below. We would exercise our discretion to allow it to be argued, if it were expedient and in the interests of justice to do so.[6] However, we are not persuaded that deciding the matter of law raised in this ground has anything but limited importance and bearing in mind the amount involved and the need for finality, we tend towards saying that it is not in the interests of justice to allow it to be argued.
- [13]But also it seems to us that this ground of appeal must fail from the outset because of the terms of section 99. It provides:
99 Separate payment by home owner for use of utility at site
- (1)This section applies if, under a site agreement, the home owner is required to pay the park owner for the use by the home owner of a utility at the site.
- (2)The home owner may be required to pay for the use only if the use is separately measured or metered.
- [14]For sewerage use, by subsection (1), this provision is only engaged if the parties have agreed in the site agreement that it is chargeable. If they have agreed this, then subsection (2) provides that it is only chargeable if the use is separately measured or metered.
- [15]Section 99 does not give ‘an entitlement to a park owner under the Act’ as described in section 19(e). Instead, it restricts an entitlement, where such entitlement is in the site agreement. To put this another way, section 99 defines a condition which must be satisfied before any entitlement in the site agreement to charge for sewerage can be effective. If the condition is satisfied, such entitlement comes from the site agreement and not from the Act. The effect of section 99 is not within section 19(e) therefore and so this ground of appeal could not succeed anyway.
- [16]In the circumstances it would be wrong to permit this ground to be argued in this appeal and we dismiss it for that reason. Alternatively we dismiss it on the merits.
- [17]For ground (b), submissions were made on behalf of the park owner, and authorities were provided, in support of the proposition that it was possible for a utility to be ‘measured’ by making calculations from metered usage, in this case from known use of water from a separate meter. Even if we were to find that these submissions are correct, so that section 99 of the Parks Act would have permitted the park owner to charge Mr Maddren for sewerage use, it would be pointless to do so because ground (a) having failed, and the member below having found as a fact that the sewerage use was not metered and therefore outside the charging clause 2.1, there was no effective provision in the site agreement under which Mr Maddren could be charged for sewerage use. This means that if we remitted the matter back for reconsideration the Member would inevitably reach the same finding. An appeal which has no utility is incompetent and should be dismissed.[7]
- [18]But there is a more fundamental difficulty with this part of the appeal. Whether or not the sewerage use was ‘measured’ is a matter of fact. The member found the sewerage use was not measured. An appeal against that finding would need leave. Alternatively, on the way the appeal was argued, it could be that this ground of appeal is a question of mixed law and fact. The question of law is whether the Member misconstrued the meaning of ‘measured’ as used in section 99(2), and the question of fact is the Member’s finding that it was not measured, having been misled on the question of law.
- [19]Either way, the appeal on ground (b) cannot succeed because leave to appeal was not sought either formally in the notice of appeal or in submissions in support of the appeal,[8] and it was confirmed in the appeal hearing that no such leave is sought. In the circumstances we are unable to grant leave to appeal even if we had wished to do so.
- [20]Accordingly we dismiss the appeal.
Application to rely on fresh evidence
- [21]Mr Maddren has applied for the Appeal Tribunal to consider fresh evidence in this appeal. This fresh evidence is a table from the water and sewerage authority’s website showing the way in which water and sewerage is separately charged. This information was before the tribunal below in a different form so we do not think it would assist us. We decline to give leave for this evidence to be considered.
Footnotes
[1] [51].
[2] In particular, sections 19 and 24 of the Parks Act.
[3] Submissions dated 1 September 2022, [24].
[4] Section 19(e) of the Parks Act.
[5] Submissions dated 1 September 2022, [25].
[6] Summers v Repatriation Commission [2015] FCAFC 36, [93] and the cited authorities.
[7] Regis Towers Real Estate Pty Ltd v The Owners of Strata Plan 56443 [2002] NSWCA 40.
[8] Submissions dated 1 September 2022, [13].