Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QCATA
  3. 2024
  4. Serenitas Communities Holdings Pty Ltd v Tassell - [2024] QCATA 56

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Serenitas Communities Holdings Pty Ltd v Tassell[2024] QCATA 56

Serenitas Communities Holdings Pty Ltd v Tassell[2024] QCATA 56

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Serenitas Communities Holdings Pty Ltd v Tassell & Ors [2024] QCATA 56

PARTIES:

SERENITAS COMMUNITIES HOLDINGS PTY LTD

(applicant/appellant)

v

NEIL TASSELL & OTHERS

(respondent)

APPLICATION NO/S:

APL092-22

ORIGINATING APPLICATION NO/S:

OCL074-20

PARTIES:

SERENITAS COMMUNITIES HOLDINGS PTY LTD

(applicant/appellant)

v

MERVYN JOHN STONEHOUSE AND ROBYN ELAINE STONEHOUSE & OTHERS

(respondent)

APPLICATION NO/S:

APL093-22

ORIGINATING APPLICATION NO/S:

OCL061-20

PARTIES:

SERENITAS COMMUNITIES HOLDINGS PTY LTD

(applicant/appellant)

v

FRANS HAMER & OTHERS

(respondent)

APPLICATION NO/S:

APL094-22

ORIGINATING APPLICATION NO/S:

OCL065-20

MATTER TYPE:

Appeals

DELIVERED ON:

27 May 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

In APL092-22, APL093-22 and APL094-22:

  1. Leave to appeal refused.
  2. Appeal dismissed.

CATCHWORDS:

APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – NATURE OF RIGHT – APPEALS IN THE STRICT SENSE AND APPEALS BY WAY OF REHEARING – APPEALS IN THE STRICT SENSE – WHEN APPEAL LIES – ERROR OF LAW – WHAT IS – GENERALLY – manufactured homes – appeal from decision that site rent increase excessive – whether discretion of tribunal miscarried

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – INTERPRETATION OF ACTS AND CLAUSES – PARTICULAR ACTS AND ORDINANCES – QUEENSLAND – consideration of s 70 Manufactured Homes (Residential Parks) Act 2003 (Qld) and matters to be considered in determining whether site rent increase excessive

Manual Homes (Residential Parks) Act 2003 (Qld) s 68, s 69A, s 70, s 73, s 99A, Sched 2

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142, s 146, s 147

Ericson v Queensland Building Services Authority [2013] QCA 391

Hammond Villages Pty Ltd v Residents of Hammond Village [2010] QCAT 186.

House v The King (1936) 55 CLR 499

Nepeor Pty Ltd v Liquor Licensing Commission [2014] SASCFC 87

Stonehouse, Hamer, Tassell and ors v Serenitas Communities Holdings Pty Ltd [2022] QCAT 91

The Residents of Edgewater Village v S J Tickle & Son Pty Ltd & Budfield [2005] QCCTMH 1.

APPEARANCES & REPRESENTATION:

 

Applicant:

Self represented

Respondents:

Caxton Legal Centre

REASONS FOR DECISION

  1. [1]
    These appeals are from a decision of the Tribunal about the site rent payable by the home owners in a manufactured homes park. The appellant is the park owner. The respondents are the home owners. The appellant increased the site rent payable by the respondents to $196.50 per site per week. The Tribunal decided that the increase was excessive, reduced the site rent to $185.00 and ordered the appellant to refund to home owners any overpayment of site rent.[1]

Site rent increases under the Manufactured Homes (Residential Parks) Act 2003 (Qld) (‘MHA’)

  1. [2]
    It is appropriate to outline the relevant provisions of the MHA relating to site rent increases.
  2. [3]
    Section 68 provides that the site rent payable under a site agreement may only be varied in the ways stated in Part 11 of the MHA. A site agreement must state the basis for working out the amount of an increase in the site rent.[2] One basis for increasing site rent is a market review of the site rent. ‘Market review of site rent’ means a review of site rent the outcome of which is decided by comparing the site rent with 1 or both of the following (a) the site rent payable for a site in 1 or more residential parks; or (b) the rent payable for other residential accommodation.[3] At least 35 days before the date the site rent will increase, the park owner is required to give the home owner for each site a general increase notice.[4]
  3. [4]
    Section 70 of the MHA applies if a park owner gives a home owner a general increase notice for a proposed increase in site rent and the home owner disputes the increase on the basis it is excessive. A home owner is entitled to apply to the tribunal for an order in relation the site rent. Section 70(5) sets out the matters the tribunal may have regard to in deciding an application:
    1. the range of site rents usually charged for comparable sites in comparable residential parks in the locality of the park;
    2. if it is impractical to obtain data for the range of site rents mentioned in paragraph (a), data is not available for that range or it is just and equitable to do so in the particular circumstances—the range of site rents usually charged for comparable sites in comparable residential parks in comparable localities to the locality the park is in;
    3. if it is impractical to obtain data for the range of site rents mentioned in paragraph (a) or (b), data is not available for that range or it is just and equitable to do so in the particular circumstances—general trends in rent for residential accommodation in the locality the park is in;
    4. the increased site rent compared to the previous site rent;
    5. the frequency, and amount, of past increases in the site rent payable under the agreement;
    6. any increase in the CPI number during the previous site rent period;
    7. the amenity or standard of the common areas and communal facilities;
    8. any withdrawal of a communal facility or service previously provided at the park;
    9. any addition of a communal facility or service not previously provided at the park;
    10. any increase in the park owner’s operating costs for the park during the previous site rent period;
    11. whether the increase is fair and equitable in all the circumstances of the case;
    12. anything else the tribunal considers relevant.
  4. [5]
    Section 99A of the MHA is also relevant in these appeals. The section provides as follows:

99A  Separate charge by park owner not to be more than cost of supply for use of utility

  1. This section applies if—
  1. under a site agreement or another agreement or arrangement, a home owner for a site in a residential park is required to pay the park owner or a third party for the use by the home owner of a utility at the site; and
  1. the use is separately measured or metered.
  1. The park owner must not charge the home owner, or arrange for the home owner to be charged, an amount (a prohibited amount) for the use of a utility that is more than the amount charged by the relevant supply entity for the quantity of the service supplied to, or used at, the site.

Maximum penalty—20 penalty units.

  1. For subsection (2), the park owner charging the home owner, or arranging for the home owner to be charged, an amount for the use of the utility includes—
  1. the park owner directing the home owner to pay the amount to a third party; and
  1. the park owner agreeing or arranging with a third party for the home owner to be charged the amount and the park owner or third party charging the home owner the amount for the purpose of that agreement or arrangement.

The decision at first instance

  1. [6]
    The subject residential park is situated in Maryborough. It is the only such park in Maryborough. On 25 February 2020, following a market review of the site rent by the appellant, the appellant increased the site rent payable by each home owner from $169.88 per week to $196.98 per week.[5]
  2. [7]
    Three separate proceedings were brought by groups of home owners. The proceedings were heard together in Hervey Bay. On 10 November 2021 the Tribunal gave its decision in the proceedings. On 23 March 2022 the Tribunal delivered reasons for the decision.
  3. [8]
    In the proceedings below, the appellant relied upon expert evidence by a valuer, Mr O'Sullivan. The respondents did not file expert evidence.
  4. [9]
    Mr O'Sullivan prepared a report which was in evidence. In the report, Mr O'Sullivan compared the subject park with a number of other parks situated in Hervey Bay and Bargara. All of the parks were situated within the Fraser Coast region. Mr O'Sullivan also provided a supplementary report. It is from the evidence of Mr O'Sullivan and the Tribunal’s approach to that evidence that the appeals largely arise.
  5. [10]
    The Tribunal found:
    1. Section 70(5)(a) to (c) of the MHA provides for a hierarchy of comparisons;
    2. Section 70(5)(a) refers to the locality of the park. This means that it should not be necessary to consider locality as an issue requiring comparison as all parks will be in the same locality;
    3. When referring to ‘locality’ the MHA is contemplating the physical location of the park. The locality of the park was Tinana a suburb of Maryborough and there were no comparable parks in that locality with the consequence that s 70(5)(a) of the MHA did not apply;
    4. The localities of the parks referred to in Mr O'Sullivan’s report were not the same locality as the subject park. The differences in locality were required to be taken into account in comparing the parks in accordance with s 70(5)(b);
    5. Consideration of s 70(5)(c) would require expert evidence and in the absence of such evidence the section could not be considered further;
    6. The applicants did not make any submissions about other comparative localities that might be considered;
    7. Site rents in the comparable parks in Hervey Bay should be adjusted by $5.00 to $10.00 to take into consideration the subject park not being located in Hervey Bay. The site rent in Bargara should also be adjusted to take into consideration the evidence of Mr O'Sullivan that the subject park was subject to $7.58 discount having regard to the site rent increase at Bargara;
    8. The number of sites per hectare at the subject park was less than the other comparable parks other than Latitude 25;
    9. The applicants were unable to give expert evidence in relation to the facilities found in comparable parks;
    10. The ‘over and above’ services provided to residents at the subject park should not be considered as part of the rent review;
    11. While the subject park had extensive facilities, the facilities at the comparison residential when compared with like for like facilities at the subject park were superior;
    12. It was not appropriate to separately calculate the value of a component in the site rent and then add it on;
    13. The 15KL per month water allowance for residents is something to be taken into consideration in arriving at market rent but not as an add on component where the result is that the home owners are effectively being charged for an amount of water they have not used;
    14. All of the comparison parks were in superior locations and had superior facilities;
    15. Golden Shores was not comparable to the subject park;
    16. Palm Lakes Resort Hervey Bay was a comparable park subject to an adjustment to site rent of $10.00 to reflect the location of the park at Hervey Bay and the superior facilities;
    17. Palm Lakes Resort Bargara was a comparable park subject to an adjustment to site rent of $5.90 to reflect the location of the park at Bargara and the superior facilities;
    18. The fact that new residents had accepted the increased site rent of $196.50 was a factor of little weight;
    19. The home owners had not enjoyed a below market rent over the three years preceding the subject increase;
    20. The issue of wear and tear applicable to the amenity or standard of common areas and communal facilities did not impact on whether the site rent increase was excessive;
    21. The provision of additional facilities by the park owner at a cost of just under $2 million did not bear on whether the site rent was excessive;
    22. The park owner did not rely upon increased operating costs in undertaking the market rent review;
    23. The temporary 12 month rent rebate provided to home owners as a result of Covid could not be taken into account;
    24. The determining issue was the comparability of site rents. The appropriate site rent was $185.00 per week.

The grounds of appeal

  1. [11]
    The grounds of appeal are numerous but may be summarised as follows:
    1. Ground 1 – error in construing s 70(5)(a) of the MHA;
    2. Grounds 2 and 7 – error in finding that the site rent in Bargara should be adjusted having regard to Mr O'Sullivan’s evidence that the subject park was subject to a discount of $7.58 having regard to the July site rent increase at Palm Lakes resort; error in finding that Palm Lakes Bargara was a comparable park with an appropriate adjustment to site rent of $5.90 per week;
    3. Ground 3 – error in finding that the facilities at the comparison parks were superior to the subject park;
    4. Ground 4 – error in determining that it was not appropriate to separately calculate the value of the water consumption allowance and then add it on for the purposes of a market rent review;
    5. Ground 5 – error in finding that Golden Shores was the most superior comparison park;
    6. Ground 6 – error in finding that Palm Lakes Hervey Bay was a comparable park with an appropriate adjustment to site rent of $10.00 per week;
    7. Grounds 8 and 13 – error in finding that an appropriate rent for the subject park was $185.00 per week;
    8. Grounds 9 and 12 – error in finding that little weight could be given to the fact that a number of home owners had entered into site agreements at the subject park subsequent to the rent increase and that the temporary rent rebate could not be taken into account in the market rent review;
    9. Ground 10 – error in not finding that the respondents had enjoyed the benefit of paying a lower and below market rent;
    10. Ground 11 – error in finding that the provision of additional community facilities and services over the three years preceding the rent increase had no bearing on whether the site rent increase was excessive.

Appeals – the statutory framework under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’)

  1. [12]
    By s 142 of the QCAT Act an appeal to the appeal tribunal on a question of law generally may be made without leave, but an appeal on a question of fact, or a question of mixed law and fact, may only be made with leave of the appeal tribunal.[6]
  2. [13]
    The distinction between questions of law and questions of fact or mixed law and fact, is important. In deciding an appeal on a question of law under s 146, the appeal tribunal must either confirm the decision or return the matter to the Tribunal for reconsideration, unless the appeal tribunal’s determination of the question of law is capable of resolving the matter as a whole in the applicant’s favour.[7] An appeal on a question of fact or a question of mixed law and fact under s 147 is decided by way of rehearing with or without the hearing of additional evidence as decided by the appeal tribunal. Upon rehearing, the appeal tribunal may confirm or amend the decision, set aside the decision and substitute its own decision or set aside the decision and return the matter to the tribunal for reconsideration.[8]
  3. [14]
    The grounds of appeal relied upon by the appellant raise questions of fact or mixed law and fact.

Consideration

  1. [15]
    The task of the learned member below was to determine whether the site rent increase was excessive. If the learned member was not satisfied the increase was excessive, he could make an order confirming the increase including on conditions considered appropriate. If the learned member was satisfied the increase was excessive he could order a reduction in the amount of the increase or order the increase be set aside. In making the decision, the learned member could have regard to the matters set out in s 70(5) of the MHA. Against this background, I turn to the grounds of appeal.  

Ground 1

  1. [16]
    The essence of appeal ground 1 is that the tribunal wrongly construed the meaning of ‘locality’ in s 70(5)(a), (b) and (c) of the MHA. The learned member observed that there is a hierarchy in regard to the comparisons under the sections. The learned member’s approach to s 70(5)(a), (b) and (c) was correct. In applying s 70(5)(a) the starting point is to identify whether there are comparable sites in comparable residential parks in the locality of the park. The term ‘locality’ is not defined in the MHA. It is not a technical legal word and should be given its ordinary meaning. That meaning may be influenced by context and purpose.
  2. [17]
    The Macquarie Dictionary definition of ‘locality’ is ‘a place, spot, or district, with or without reference to things or persons in it.’ The word ‘district’ means ‘an area of land delineated for some administrative or other purpose.’
  3. [18]
    In Hammond Villages Pty Ltd v Residents of Hammond Village[9] the tribunal stated:

The Tribunal is inclined to the view that one of the factors relevant to the question whether this term is given a narrow or wide interpretation is the number of comparable parks in the immediate vicinity of the subject park.  That is, if there are sufficient comparable parks in the immediate vicinity of the subject park to give a reasonable range for sensible comparison, it is not necessary or appropriate to widen the concept of locality to include parks which would not normally be regarded as in the immediate vicinity, and which thus do not share the particular circumstances or characteristics pertaining to parks in the local area.[10]

  1. [19]
    As the learned member correctly observed, Hammond Villages was decided before the MHA was amended to include the current ss 70(5)(a) to (c). The decision in Hammond Villages can therefore be distinguished.
  2. [20]
    The term ‘locality’ is, in my view, not intended to identify an area delineated by specific boundaries and requires a consideration of a local, rather than a more general geographic area. Although a note of caution must be sounded when drawing comparisons between the meaning of the same term in different legislative schemes, the term ‘locality’ was considered in Nepeor Pty Ltd v Liquor Licensing Commission:

I consider the word is used in the Act to denote, in a general way, the fact of being local, or neighbouring, as opposed to distant or remote. Often the “locality” is, as a matter of fact, not a matter for dispute as the relevant area is geographically discrete, as, for example, in the case of a country town [case references omitted]. In other cases, particular physical features of the area, such as a river, or some other significant obstruction to the free movement of people, might provide the basis for including or excluding particular areas from consideration in a precise way. However, in a case like the present one, where the proposed premises are within a built up region which, on any view, extends well beyond areas which could conceivably be relevant to the enquiry, precise delineation or definition, will rarely be possible. Nevertheless, if the concept and purpose of the section is recognised, it is capable of rational application in a practical way.[11]

  1. [21]
    This approach to the meaning of ‘locality’ has much to commend it. The appellant says that the ‘locality’ in which the subject park is situated is the Wide Bay – Burnett  region. The appellant points to the Sunshine Coast and Gold Coast as being each a ‘locality’. The former was found to be a locality in The Residents of Edgewater Village v S J Tickle & Son Pty Ltd & Budfield Pty Ltd.[12]
  2. [22]
    I do not accept the appellant’s submission. The Sunshine Coast is a conurbation consisting of a number of local authorities. The Gold Coast is a single city. In my view, within the Sunshine Coast and the Gold Coast, there will be a number of localities, just as there will be in any major urban agglomeration. This highlights why for the purposes of s 70(5)(a) of the MHA the Wide Bay – Burnett region is not a locality. It is a far more disparate and widespread area than either the Sunshine Coast or the Gold Coast.
  3. [23]
    My preferred construction of the word ‘locality’ is consistent with the legislative context in which the word appears in s 70(5). Clearly, the legislature intended that when comparing residential parks, consideration would first be given to parks in the local area. If there were no such parks, s 70(5)(b) permits the tribunal to consider comparable parks further afield in comparable localities.
  4. [24]
    There was no error by the learned member in his approach to the meaning of ‘locality’ and in finding that s 70(5)(a) had no application in the present dispute.

Grounds 2 and 7

  1. [25]
    In his supplementary report Mr O'Sullivan stated: ‘In particular, when compared against Palm Lake Resort Bargara which is considered to provide superior communal facilities in comparison to the Subject (and all MHRPs in the region) but is situated substantially further away from many critical services, the Subject’s assessed market rent at $190/site/week (excluding water) is at a discount of $7.58/site/week (advised $197.58/site/week following a 3.5% increase on 1 July 2020).
  2. [26]
    It is apparent from the evidence of Mr O'Sullivan that subsequent to the preparation of his initial report the site rent at Palm Lakes Resort Bargara had increased to $197.58 per week from the $190.90 per week referred to in his initial report. The reference in the supplementary report to a ‘discount’ is apt to mislead. The effect of Mr O'Sullivan’s evidence was that his assessment of the market rent of the subject park was $7.58 per week less than the (then) site rent at Palm Lakes Resort Bargara.
  3. [27]
    The learned member found that all of the comparable parks referred to by Mr O'Sullivan were in superior locations to the subject park. Mr O'Sullivan considered Palm Lakes Resort Bargara to be the park most closely comparable to the subject park. The learned member found at reasons [33] that Mr O'Sullivan had stated in his supplementary report that the site rent was subject to a discount of $7.58 having regard to a site rent increase in July (year not specified).  The appellant says that this finding was contrary to the evidence and otherwise not supported by the evidence.
  4. [28]
    The learned member’s statement at reasons [33] must be read in context. At reasons [33] the learned member found that the weekly site rent of comparable parks in Hervey Bay were subject to adjustment having regard to the evidence of Mr O'Sullivan that there was a $5.00 to $10.00 allowance made in regard to the locality of the subject park not being in Hervey Bay. Mr O'Sullivan’s evidence was that he had taken into consideration the location of Palm Lakes Resort Bargara in his assessment and explained why in cross-examination.[13] At reasons [49] the learned member found that a $5.90 weekly discount should be applied to the site rent at Palm Lakes Resort Bargara taking into consideration its superior location to the subject park, superior facilities with larger sites, additional green space and the water allowance at the subject park, resulting in a comparable weekly site rent of $185.00. The corollary of this finding is that the learned member’s starting point was $190.90 per site per week.  In his supplementary report Mr O'Sullivan noted that the ‘equivalent rate’ (ie the market rent assessment of the subject park) ‘reflects a discount range of between around $1.00/site/week (Bargara located MHRP) to $13.00/site/week (Hervey Bay located MHRP) …’. It is apparent from his supplementary report that Mr O'Sullivan had revised his assessment of the comparable site rent at Palm Lakes Resort Bargara to $197.58 per week. Notwithstanding the comments by Mr O'Sullivan in the supplementary report regarding the increase in the site rent at Palm Lakes Resort Bargara, he proceeded to reproduce in the supplementary report the table of comparative parks found in the initial report which noted the weekly site rent at Bargara of $190.90. While the evidence on this point was not entirely clear it is reasonably apparent that the evidence of Mr O'Sullivan in the supplementary report was that the comparable rent at Bargara was $197.58. It follows that the learned member erred at reasons [49] in finding that an appropriate adjusted weekly site rent for the subject lot was $185.00 when compared with Bargara.

Ground 3

  1. [29]
    The appellant says that the learned member erred in finding that the facilities at the comparison parks were superior to the subject park.
  2. [30]
    At reasons [43] the learned member found that the facilities at the comparison residential parks when compared with like for like facilities at the subject park, were superior and ‘this was acknowledged by Mr O'Sullivan at the hearing and accepted by Serenitas.’ At reasons [48] the learned member found that the comparison parks were all in superior locations and had facilities which were superior in terms of like for like facilities.
  3. [31]
    The evidence of Mr O'Sullivan was that the comparison parks were Palm Lakes Resort Bargara, Palm Lakes Resort Hervey Bay, Latitude 25 and Golden Shores.[14] Mr O'Sullivan’s evidence was that: the communal facilities at Bargara were arguably superior, and that the location of the park was marginally superior;[15] Hervey Bay had a higher level of finishes and was in a superior location;[16] the communal facilities at Latitude 25 were superior and was in a superior location;[17] Golden Shores had similar style community facilities to the subject park[18] however was ‘the best located’ comparison park.[19]
  4. [32]
    The finding by the learned member that the comparison parks had superior facilities was, with the exception of Golden Shores, supported by the evidence. The learned member’s finding at reasons [43] regarding the superior facilities at the comparison parks was qualified by the learned member in the reasons when he stated: ‘I note that this is a departure from what was set out in Mr O'Sullivan’s report in particular in regard to Golden Shores which he said had inferior facilities.’ Mr O'Sullivan had stated in his initial report that the facilities at Golden Shores were considered to be inferior.[20] The learned member correctly observed that the evidence of Mr O'Sullivan at the hearing was that the facilities at Golden Shores were of a similar style to the subject park. Although the use of the word ‘style’ by Mr O'Sullivan might be open to interpretation, his evidence was that Golden Shores and Palm Lake Hervey Bay had ‘similar style community facilities’ to the subject park but that, in relation to Hervey Bay ‘… there are higher level finishes in comparison as well…’. The learned member’s findings were open on the evidence.
  5. [33]
    There was no error by the learned member.

Ground 4

  1. [34]
    The appellant says that the learned member erred in determining that it was not appropriate to separately calculate the value of the water consumption allowance and then add it on for the purposes of a market rent review.
  2. [35]
    The learned member found:

I note Serenitas’ earlier submissions in regard to the process of determining a market rent which showed that it was a complex assessment of a range of factors and not able to be established by the application of any mathematical formula. That no calculation in a mathematical sense is involved and is a subjective assessment based on objective facts. Further, that the determination site rent is not a precise science. It is therefore surprising considering all of the different factors involved in the market rent review in regard to locality, sites and parks Mr O'Sullivan decided to perform a mathematical calculation in regard to the water allowance based on an assumption that it was appropriate that each home owner was be charged for the consumption of 15 KLs of water whether or not they used that amount. While Serenitas described it as a service and likens it to the availability of other communal facilities and that it irrelevant whether it is used or not. The difference is that those facilities just like the furniture and car in the example have been provided and it is irrelevant whether they are used as they are available for use. Whereas the water is a consumable which is available for use and it will only be provided when it is consumed. I note that each of the manufactured homes are metred for water use and if the 15 KL allowance is exceeded the home owner is charged for the excess water use. I do not consider it appropriate to separately calculate the value of a component in the site rent and then add it on. If the home owners were to be charged for 15KL of water whether they used it or not that would not be a benefit for them and they would be better off having the water separately billed. This of course would create an administration cost for the park owner in having to prepare a bill for water use each month or quarter. The 15 KL water allowance is something that must be taken into account in arriving at market rent but not as an add on component where the result is that the home owners are effectively being charged for an amount of water they may not have used. I accept the applicants’ submissions in that regard. I also note that having regard to the way the market site rent component for the water allowance was calculated by Mr O'Sullivan there may be an argument in regard to the application of s 99A of the MH Act.[21]

  1. [36]
    It is not contentious that the approach to the treatment of water usage charges varied from park to park. The subject park site rent included a water usage allowance of 15 kilolitres per month. Any water usage by the owner in excess of this allowance was to be paid for by the owner. The site rent at one comparison park included unlimited water usage by owners. The other comparison parks charged owners separately for water usage.
  2. [37]
    In his initial report, Mr O'Sullivan stated that in order to undertake a meaningful comparison of site rents ‘they need to be considered on an equivalent standing.’[22] Mr O'Sullivan went on to say ‘Due to the majority of the noted evidence (ie the comparison parks)[23] being exclusive of water usage based on the allowable monthly 15kL usage amount/consumption allowance, to bring the site rent to a comparable base/net position.’
  3. [38]
    Mr O'Sullivan was questioned at the hearing about the issue of water usage and the process of valuing the benefit to owners of the 15 kilolitre per month water allowance. Mr O'Sullivan’s evidence was that the water allowance was the equivalent of $6.43 per site per week.[24]
  4. [39]
    As is often the case in the tribunal, the hearing was somewhat fluid with the applicants interspersing their cross examination of Mr O'Sullivan with their own submissions, often presented as evidence. One of the respondents, Mr Hamer, said that he used less than two thirds of the water allowance.[25] Another of the respondents, Mr Hulett, said that the appellant was required to pay for actual water usage whereas the charge to the owners was based on potential usage and that the appellant was ‘pocketing quite a difference.’[26]
  5. [40]
    The learned member asked Mr O'Sullivan a series of questions about the water allowance. Mr O'Sullivan conceded that the owners were being charged for the equivalent of 15 kilolitres a month whether they used it or not.[27] Mr O'Sullivan also conceded that it was not fair and equitable to charge someone for something they were not using or may not use.[28] Mr O'Sullivan also conceded that any part of the water allowance not used by owners became a profit component for the appellant.[29]
  6. [41]
    Section 12 of the site agreement entered into by the owners and the appellant provides that water is provided by the park owner and charged based on usage. Each of the sites is separately metered.  Appendix B to the site agreement is a table of costs for utilities and services and provides that the site rent includes potable water to a limit of 15 kilolitres per month.
  7. [42]
    Section 99A of the MHA provides as follows:

99A Separate charge by park owner not to be more than cost of supply for use of utility

  1. This section applies if—
  1. under a site agreement or another agreement or arrangement, a home owner for a site in a residential park is required to pay the park owner or a third party for the use by the home owner of a utility at the site; and
  1. the use is separately measured or metered.
  1. The park owner must not charge the home owner, or arrange for the home owner to be charged, an amount (a prohibited amount) for the use of a utility that is more than the amount charged by the relevant supply entity for the quantity of the service supplied to, or used at, the site.

Maximum penalty—20 penalty units.

  1. For subsection (2), the park owner charging the home owner, or arranging for the home owner to be charged, an amount for the use of the utility includes—
  1. the park owner directing the home owner to pay the amount to a third party; and
  1. the park owner agreeing or arranging with a third party for the home owner to be charged the amount and the park owner or third party charging the home owner the amount for the purpose of that agreement or arrangement.
  1. Without limiting subsection (2), a prohibited amount includes the following amounts charged, or purported to be charged—
  1. an amount for reading a meter for the use of the utility;
  1. another amount for administration relating to the supply, or on-supply, of the utility to the site, including, for example, an amount relating to obtaining for the home owner a State government concession or rebate for the supply or on-supply of the utility.
  1. In this section—

relevant supply entity means the entity that has charged, or may charge, the park owner for supplying the utility to—

  1. the site; or
  1. the residential park for on-supply to the site.

supplied, to a site, includes supplied to the residential park for on-supply to the site.

third party means an entity other than the relevant supply entity.

  1. [43]
    A ‘utility’ includes water.[30]
  2. [44]
    The following statement from the explanatory notes to the bill amending s 99A is relevant: ‘Most manufactured home owners are retirees living on a limited, fixed income. Site rent increases, and, in particular, site rent increases based on a market review of site rents (given their unpredictable outcomes), are an issue of significant concern for home owners. Manufactured home owners are in a different situation to renters who can move to other accommodation offering the same or lower rent, relatively quickly and affordably, if their rent is increased beyond what they are able to afford.’[31]
  3. [45]
    It cannot be controversial that the relevant site agreements in respect of the subject park are governed by s 99A, each of the requirements of s 99A(1) being satisfied. By s 99A(2), the appellant was prohibited from charging the owner an amount for the use of a utility that was more than the amount charged by the relevant supply entity for the quantity of the service supplied to, or used at, the site. This prohibition must be considered in the context of the statement from the explanatory notes referred to earlier. In circumstances where many home owners are financially constrained, the MHA is concerned with ensuring owners are not paying for the provision of a utility they are not receiving.
  4. [46]
    The learned member was correct in his observation that the process of determining a market rent is not one involving precise mathematical calculation. The learned member was also correct in observing that, contrary to this, Mr O'Sullivan’s approach to the issue of water usage involved a mathematical calculation. The learned member was also correct in observing that if the owners did not use the total monthly 15 kilolitre water allowance, and yet the site rent included a component for water usage on this basis, the owners would be better off having the water billed separately. As I have observed, Mr O'Sullivan conceded in evidence that it would not be fair and equitable for owners to pay for something they did not use. As I have also observed Mr O'Sullivan conceded that any part of the water allowance not used by the owners was effectively profit for the appellant. Mr O'Sullivan’s attempts at the hearing to justify his approach to the issue of the water allowance in determining the market rent were, with respect, unpersuasive and the learned member was right to reject Mr O'Sullivan’s approach particularly as it was at odds with his evidence at the hearing regarding the appropriateness of charging owners for something whether they used it or not.
  5. [47]
    There was also no error by the learned member in finding that Mr O'Sullivan’s approach to valuing the water allowance could engage s 99A(2) of the MHA particularly in circumstances where Mr O'Sullivan had given the evidence to which I have earlier referred about the fairness of charging owners for something they did not use. There was therefore no error by the learned member in finding that the 15 kilolitre water allowance was something that must be taken into account in arriving at market rent but not as an add on component as Mr O'Sullivan had.
  6. [48]
    The appellant says that the learned member failed to take into consideration s 73 of the Act. There was no error by the learned member in not considering s 73. The provision was not relevant to the dispute below. Despite this, a consideration of the section supports the conclusion by the learned member regarding the treatment of the water allowance.  Section 73 applies in circumstances where the use of a utility by an owner is not separately metered and the owner’s use of the utility becomes separately metered or the utility stops being available for use (called a change event). The park owner must, within 14 days of the change event, give to the owner a utility costs notice stating, inter alia, the utility cost factored into the site rent payable under the agreement and the utility cost has been worked out.[32] A ‘utility cost’ means a cost, for a utility supplied to or used at a site in a residential park, that the park owner incorporates into the site rent payable under a site agreement for the site, whether or not the cost is separately identified in the agreement.[33] Mr O'Sullivan’s approach to the valuing of water usage was, effectively, to apply a utility cost although not one disclosed to the owners. As the MHA makes clear, s 73 had no application in respect of the subject park in circumstances where the sites were individually metered.
  7. [49]
    The appellant also says that the learned member ignored the fact that the site agreements were a bargain struck with the park owner and the fairness or otherwise of the bargain was irrelevant to the proceeding below. Contrary to the appellant’s submission the learned member confined himself to a consideration of the market rent review by Mr O'Sullivan. There is nothing in the reasons to suggest that the learned member took into consideration any irrelevant matters.
  8. [50]
    This ground of appeal is not made out.

Ground 5

  1. [51]
    The appellant says that the learned member erred in finding that Golden Shores was the most superior comparison park. The learned member stated:

The most superior residential park is Golden Shores which is in central suburban location in a coastal city and has proximity to major shopping and social infrastructure facilities. While its communal facilities may be of an older style they are considered on a like for like basis to be superior as well. This is reflected in current site rent of $209.50 for standard sites. Having regard to its overall superior qualities I do not consider it comparable to RVHB. I note that its site rent is inclusive of unlimited water usage and even with the allowance of between $5.00 to $10.00 a week which Mr O'Sullivan stated it was appropriate to take into account the superior location that would still result in a site rent approaching $200 which would be excessive for RVHB. Palm Lake Resort Hervey Bay is in a suburban location which is noted to be superior and has superior like for like facilities. Its current site rent is $195 per week which is considerably lower than Golden Shores I take that as being reflective of it having an inferior location to Golden Shores.[34]

  1. [52]
    I have addressed the evidence of Mr O'Sullivan regarding Golden Shores when dealing with ground of appeal 3. It may be conceded that the learned member erred in finding that the communal facilities at Golden Shores were superior to the subject park. This is not of itself determinative of the ground of appeal.
  2. [53]
    Mr O'Sullivan’s evidence was that a $5.00 to $10.00 per week differential in site rents applied when comparing the subject park with parks situated in Hervey Bay, noting that Hervey Bay was considered a more desirable location. The appellant says that the effect of Mr O'Sullivan’s evidence was that the differential in site rent might be lower than $5.00 or higher than $10.00. I reject this submission. Mr O'Sullivan’s evidence was clear and not open to the interpretation sought to be placed upon it by the appellant. 
  3. [54]
    The site rent at Golden Shores included an unlimited water usage allowance. The appellant repeats its submissions regarding the water usage allowance and says that by disregarding the weekly amount of $6.43 which Mr O'Sullivan ascribed to the 15 kilolitre per month water allowance at the subject park, the proposed site rent at the subject park appeared excessive. This submission cannot be accepted in light of my conclusion in respect of appeal ground 4.
  4. [55]
    The appellant has failed to demonstrate how the error to which I have referred ultimately led to error in the final decision.
  5. [56]
    Ground of appeal 5 is not made out.

Ground 6

  1. [57]
    The appellant says that the learned member erred in finding that Palm Lakes Hervey Bay was a comparable park with an appropriate adjustment to site rent of $10.00 per week. The learned member stated:

[48] … Palm Lake Resort Hervey Bay is in a suburban location which is noted to be superior and has superior like for like facilities. Its current site rent is $195 per week which is considerably lower than Golden Shores I take that as being reflective of it having an inferior location to Golden Shores.

[49] I consider that it is a comparable park and with an appropriate adjustment to its site rent of $10 per week having regard to the allowance for Hervey Bay location that would be a rent which was comparable for RVHB. While noting the superior facilities at the Palm Lakes Resort Hervey Bay I have taken into account the larger site sizes, additional green space and the 15KL per month water allowance to balance that out. That then results in a site rent for RVHB of $185 per site per week.

  1. [58]
    Mr O'Sullivan’s evidence was that a site rent differential of $5.00 to $10.00 per week for parks located in Hervey Bay. The learned member adopted the higher end of this range. It was open to the learned member to do so. The complaint by the appellant that the learned member failed to provide adequate reasons for what was essentially his acceptance of the evidence of Mr O'Sullivan is without merit.
  2. [59]
    The appellant again repeats its submissions regarding the approach taken by the learned member to the issue of the value of the water usage allowance. These submissions have been earlier rejected.
  3. [60]
    Ground of appeal 6 is without merit.

Grounds 8 and 13

  1. [61]
    Grounds 8 and 13 assert error by the learned member in finding that an appropriate rent for the subject park was $185.00 per week. These are not discrete grounds of appeal but rather simply assert error by the tribunal in its final conclusion. It is therefore not proposed to further address these grounds.

Grounds 9 and 12

  1. [62]
    These grounds of appeal assert error by the learned member in finding that little weight could be given to the fact that a number of home owners had entered into site agreements at the subject park subsequent to the rent increase and that the temporary rent rebate could not be taken into account in the market rent review.
  2. [63]
    The learned member said at reasons [50];

Serenitas submitted that there had been a number of new home owners who had commenced residing at RVHB pursuant to site agreements that provided for payment of site rent at the new rate of $196.50 per week since the increase and that this demonstrated market acceptance of the new site and was very persuasive. They cited several cases in support of that proposition. Mr O'Sullivan also supported the proposition. The applicants did not consider that this should be taken into account as the new home owners were not aware of the dispute and in some cases they had not been able to take assignments of current site agreements. I agree that if I was otherwise satisfied that the new site rent was appropriate that the new site agreements at the increased would be confirmatory. In that case though. Having regard to my findings above I do not consider the new site rent is appropriate and therefore that fact that some may accept has little weight.

  1. [64]
    The evidence before the tribunal below was that 16 owners had entered into site agreements at the increased weekly rate of $196.50. The essence of the appellant’s submission is that this was evidence of what the market was prepared to pay and that the member erred in not giving the evidence appropriate weight.
  2. [65]
    The learned member had regard to s 70(5)(d) of the MHA. He found the evidence that a number of owners had entered into site agreements at the increased site rent was not particularly persuasive. The learned member said that the evidence had ‘little weight’. It is apparent that the member considered the evidence. It is apparent that he weighed the evidence. It is apparent that he considered that while the evidence had some weight, it was limited. It was a matter for the learned member to ascribe weight to the evidence.
  3. [66]
    The appellant says that the learned member’s finding is contrary to previous decisions of the tribunal and the predecessor tribunal.  Every case must be determined in its facts and the discretion exercised by the tribunal applying the relevant legal principles to the facts as found. None of the decisions relied upon by the appellant are persuasive. They each involve a determination by the tribunal about the weight to be given to evidence of owners entering into site agreements at an increased site rent.
  4. [67]
    There was no error by the learned member. Ground of appeal 9 is not made out.
  5. [68]
    The learned member stated:

[62]  Serenitas submitted that they had provided a temporary rent rebate to home owners as a result of Covid being a rent reduction equal to the increase for the period of 1 year, with a benefit of $1,379.04. that new home owners have entered into new site agreements agreeing to pay the increase, which I have dealt with previously. That the applicants have had the benefit of paying a below market rent for a long period of time, which I have dealt with previously. The increase is affordable in all of the circumstances. This is based on a calculation of the impact of the site rent increase on married pensioners receiving the full amount of rent assistance. It is noted that the applicants have not filed any evidence in regard to their financial circumstances which I accept.

[63] While the applicants have not provided financial documents they have raised issue with the affordability of the site rent increase in particular having regard to the large increase since 2017. They have also raised all of the issues in regard to the comparability of RVHB to the parks which I have dealt with previously. It was submitted by the applicants that the temporary rent rebate did not change the new site rent and should not be considered. While I applaud the temporary rent rebate I agree that it cannot be taken into account as the site rent would stay at $196.50 per week. The temporary rent rebate should be adjusted to the new site rent.

  1. [69]
    Ground of appeal 12 asserts that the learned member erred in not taking into account the temporary rent rebate. The appellant says that the temporary rent rebate was relevant to s 70(5)(k) which provides that the tribunal may take into consideration whether the rent increase is fair and equitable in all the circumstances.
  2. [70]
    The evidence below was that the appellant had provided each site with a temporary rent rebate of $26.52 for a period of 12 months due to the adverse effects on owners of the COVID pandemic. The appellant says that the rent rebate was evidence of the affordability of the subject market increase and the size of the market increase.
  3. [71]
    The learned member did not take into consideration the ability of the owners to afford the rent increase. He specifically observed that no evidence of individual financial circumstances was before the tribunal. The learned member was correct in this regard.
  4. [72]
    Contrary to the appellant’s submissions, it is difficult to apprehend what relevance the rent rebate had to the matter of the general site rent increase. The appellant’s submissions are of little assistance and, such as they are, are unpersuasive. In the absence of any compelling argument by the appellant identifying error by the learned member, and what is said to be the consequence of that error in the final decision, this ground of appeal is not made out. 

Ground 10

  1. [73]
    The appellant asserts error by the learned member in failing to find that the respondents had enjoyed the benefit of paying a lower and below market rent. The learned member stated at reasons [54]:

I note the history of market rent increase. I do not accept that the home owners have enjoyed a below market rent. When Mr Stanaway’s report is perused it is clear that he did not find any residential parks which he considered comparable to RVHB in terms of location or site size and used general trends in residential park site rent. His valuation was never tested and the site rent was as agreed between the parties and I take that as the appropriate site rent for me to consider.

  1. [74]
    The learned member considered the frequency and amount of previous increases in the site rent. At reasons [52] and [53] the learned member considered the previous market rent reviews undertaken in 2017 and 2020. In respect of the 2017 review, the learned member noted that the increased rent following that review was disputed by the owners and, following mediation, the parties agreed to increase the site rent to $165.00 with capped annual increases. There was clearly no error by the learned member in finding that the site rent agreed by the parties following the 2017 review was appropriate.
  2. [75]
    What the appellant appears to be submitting is that the learned member’s finding that the appropriate weekly site rent was $185.00 forces the conclusion that the owners had enjoyed a below market rent prior to the determination below. I do not accept this submission. The purpose of a market rent review is, by undertaking a market site rent valuation, to assess the appropriate site rent. In many cases, this will result in an increase in site rent. This is what happened below. The learned member’s statement that he did not accept the home owners had enjoyed a below market rent must be seen in context. The learned member’s statement, properly understood, is confined to the 2017 increase and subsequently. In circumstances where the appellant had agreed on the site fee following mediation, it was correct for the learned member to observe that the owners had not enjoyed below market rent. The site rent they had paid subsequent to the 2017 was the amount agreed to by the appellant. It is difficult to apprehend how the appellant can now argue that, having reached agreement with the home owners, the site rent did not reflect the market rent.
  3. [76]
    There was no error by the learned member. Ground of appeal 10 is not made out. 

Ground 11

  1. [77]
    Ground of appeal 11 asserts error by the learned member in finding that the provision of additional community facilities and services over the three years preceding the rent increase had no bearing on whether the site rent increase was excessive.
  2. [78]
    Section 70(5)(i) of the MHA provides that the tribunal may consider any addition of a communal facility or service not previously provided at the park. The learned member noted the submission by the appellant that, since the 2017, an amount of just under two million dollars had been expended on the provision of additional facilities. The respondents said that these facilities were provided to upgrade basic facilities for an additional 70 residences added when the park expanded.
  3. [79]
    The learned member stated at reasons [60]:

Having regard to the increase in the number of sites contributing site rent and the fact which I accept form Mr Tassell that the work was performed as part of a further development of the facility I do not consider that these additional facilities or upgrades bears on the question here as to whether the site rent increase is excessive.

  1. [80]
    The evidence before the learned member was, subsequent to the 2017 review, the expansion in size of the subject park had been completed. In evidence before the tribunal below was a market rent assessment report dated 1 January 2017 prepared by Mr Stanaway. Mr Stanaway’s valuation was the basis of the 2017 rent increase. Mr Stanaway noted that the subject park was (then) partly developed with a total of 274 sites to be provided of which approximately 200 sites were occupied. Mr Stanaway noted that stages 8 and 9 of the park were under development and that as part of the continuing development common facilities had either been further developed or extended. Mr Stanaway noted a number of additions and/or conversions yet to be implemented as part of the continuing development of common facilities. 
  2. [81]
    The evidence before the learned member was, subsequent to the 2017 review, the population of the subject park had increased by 29 per cent. The respondents’ evidence was that the expansion of the facilities as referred to in the report of Mr Stanaway and in the evidence of the appellant’s representative, Mr Forbes, was directly linked to this population increase and that the facilities could not therefore be said to be additional.
  3. [82]
    The evidence of Mr Forbes was that subsequent to the 2017 review, at a cost of just under two million dollars, the appellant had added a number of community facilities and services that were not taken into consideration in the 2017 review.[35] Mr Forbes noted those facilities and services to be: an extension of the existing main function hall and converting an existing craft room into a games room; construction of a new arts and crafts building; extension of the existing gymnasium and the construction of a storage shed to house intermittently used gym items; the installation of a second swimming pool; extension of the existing lawn bowls area; construction of a lakeside complex including toilet and shower facilities and recreational activities; conversion of an existing shed to an additional men’s shed area.[36] At the hearing, Mr Forbes was asked about these additional facilities and services. Mr Forbes gave evidence that in 2015 the first steps were taken to expand the subject park.[37] The evidence of Mr Forbes was that the appellant had a meeting with homeowners. Mr Forbes said:

We also sent out a questionnaire to say, “Hey, because the village is growing, we will be making the community facilities grow as well.” So basically you would’ve noticed that in about 2016/17 the builders were in.[38]

  1. [83]
    The following exchange took place between one of the respondents and Mr Forbes:

Respondent: … I was at that meeting, and we were aware that facilities were going to be extended. And the reason they were going to be extended was because there was going to be extra homes built?

Mr Forbes:  Correct.

Respondent: And would you agree that if those facilities were extended and added onto simply because we could no longer fit?

Mr Forbes: And that’s what happens in a development. As it grows, the facilities grow.[39]

  1. [84]
    Section 70(5)(i) is concerned with any addition of a communal facility or service not previously provided at the park. The words of the section should be construed according to their ordinary meaning within the context of s 70 and the Act more broadly.  The addition of a communal facility or service includes the expansion of an existing of an existing facility or service.
  2. [85]
    It is relevant in considering s 70(5)(i) whether the addition or expansion of communal facilities or services is related to an increase in the number of home owners. Section 70(5)(i) is concerned with the enhancement of the amenity of the park for the owners. It is not contentious in this appeal that the population of the park had increased by 29%. On any view, this represents a very significant increase in the number of owners using the park’s facilities and services. The evidence of Mr Forbes was that the additional facilities were constructed to accommodate the increased park population. While there may have been some degree of enhancement of the existing facilities and the construction of new facilities, such as the second swimming pool and the lakeside facilities, it remains the fact that the evidence of Mr Forbes, and the respondents, was that the principal reason the additions and enhancements were undertaken was to accommodate an increased population.
  3. [86]
    I am not persuaded that there was error in the learned member’s approach to s 70(5)(i) or the conclusions he reached on the evidence. This ground of appeal is not made out.

Conclusion on grounds of appeal

  1. [87]
    The appellant has established error by the learned member in finding that an appropriate adjusted weekly site rent for the subject lot was $185.00 when compared with Palm Lakes Resort Bargara. However, this of itself is insufficient for the appellant to succeed in the appeals. The appellant must establish that the error led to the miscarriage of the member’s discretion in determining whether the site rent was excessive.
  2. [88]
    The principles governing whether there has been error in the exercise of a discretion are well established. In House v The King it was stated:

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.[40]

  1. [89]
    The threshold issue to determine is whether the exercise of the learned member’s discretion miscarried. The failure to properly exercise a discretion is a question of law.
  2. [90]
    The evidence before the learned member was that there were four parks comparable to the subject park. The evidence before the learned member was that the comparable parks were in superior locations to the subject park and generally had superior facilities. The learned member found that Palm Lake Resort Hervey Bay (PLRHB) was a comparable park. The weekly site rent was $195.00. Mr O'Sullivan’s evidence was that the rent at the subject park should be discounted by $5.00 to $10.00 per week when comparing the park with those in Hervey Bay. The learned member found that PLRHB was in a superior location to the subject park and, accepting the evidence of Mr O'Sullivan, it was appropriate to apply an adjustment of $10.00 to take into account the Hervey Bay location.  The learned member concluded that, adjusting for the superior location of PLRHB, a comparable site rent of $185.00 per week in respect of the subject park was arrived at. The learned member found that Palm Lakes Resort Bargara (PLRB) was also a comparable park. The learned member found that a $5.90 adjustment should be applied to the weekly site rent at PLRB. Accepting that there was error in the learned member’s finding regarding the weekly site rent at PLRB, an adjusted figure of $191.68 is arrived at.
  3. [91]
    No error has been established in relation to the findings by the learned member regarding the comparable park, PLRHB. Nor has error been established in respect of the member’s findings regarding the matters to be considered set out at s 70(5) of the MHA. It was open to the learned member on the evidence to conclude that the increased site rent at the subject park was excessive, that PLRHB was a comparable park and that the site rent should be fixed in the amount of $185.00 per week. The error by the learned member regarding the site rent at PLRB is, of itself, insufficient to establish error in the exercise of the learned member’s discretion.

Conclusion

  1. [92]
    The appellant has failed to establish error in the final decision below. Insofar as leave is required, leave to appeal in each proceeding is refused. The appeals are otherwise dismissed.

Footnotes

[1] Stonehouse, Hamer, Tassell and ors v Serenitas Communities Holdings Pty Ltd [2022] QCAT 91.

[2]  MHA s 69A.

[3]  MHA Sched 2 Dictionary.

[4]  Ibid s 69E.

[5]  n 1 at [1].

[6]  QCAT Act s 142(3)(b).

[7] Ericson v Queensland Building Services Authority [2013] QCA 391.

[8]  n 6 s 147(3).

[9]  [2010] QCAT 186.

[10]  Ibid at [48].

[11]  [2014] SASCFC 87.

[12]  [2005] QCCTMH 1.

[13]  T2-14, lines 23 to 46.

[14]  Appeal Book page 185.

[15]  Ibid at 181.

[16]  T2-11 line 25 and noting the evidence of Mr O'Sullivan that all comparison parks situated in Hervey Bay were in a superior location.

[17]  T1-94 line 16.

[18]  T2-11 line 23.

[19]  T2-13 lines 13 – 14.

[20]  Appeal Book, page 181.

[21]  n 1 at [47].

[22]  Appeal Book at page 184.

[23]  Words in brackets added.

[24]  T1-110, line 45.

[25]  T1-114, line 34.

[26]  T1-115, lines 23 to 25.

[27]  T2-17, lines 7 to 11.

[28]  T2-17, line 36.

[29]  T2-17, line 44.

[30]  MHA Sched 2 Dictionary.

[31]Housing Legislation (Building Better Futures) Amendment Bill 2017.

[32]  MHA s 73(2).

[33]  MHA Sched 2, Dictionary.

[34]  n 1 at [48].

[35] Appeal Book, page 232.

[36]  Ibid.

[37]  T2-45, line 3.

[38]  T2-45, lines 16 to 19.

[39]  T2-45, lines 34 to 40.

[40]  (1936) 55 CLR 499.

Close

Editorial Notes

  • Published Case Name:

    Serenitas Communities Holdings Pty Ltd v Tassell & Ors

  • Shortened Case Name:

    Serenitas Communities Holdings Pty Ltd v Tassell

  • MNC:

    [2024] QCATA 56

  • Court:

    QCATA

  • Judge(s):

    Senior Member Brown

  • Date:

    27 May 2024

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Ericson v Queensland Building Services Authority [2013] QCA 391
2 citations
Jump To
Cite 1 - [2013] QCA 391
Cite 2 - [2013] QCA 391
Hammond Villages Pty Ltd v Residents of Hammond Village [2010] QCAT 186
2 citations
Jump To
Cite 1 - [2010] QCAT 186
Cite 2 - [2010] QCAT 186
House v The King (1936) 55 CLR 499
2 citations
Jump To
Cite 1 - (1936) 55 CLR 499
Cite 2 - (1936) 55 CLR 499
Nepeor Pty Ltd v Liquor Licensing Commission [2014] SASCFC 87
2 citations
Jump To
Cite 1 - [2014] SASCFC 87
Cite 2 - [2014] SASCFC 87
Stonehouse, Hamer, Tassell and ors v Serenitas Communities Holdings Pty Ltd [2022] QCAT 91
2 citations
Jump To
Cite 1 - [2022] QCAT 91
Cite 2 - [2022] QCAT 91

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.