Monte Carlo Caravan Park Pty Ltd v Curyer
[2006] QDC 122
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- Monte Carlo Caravan Park Pty Ltd v Curyer[2006] QDC 122
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Monte Carlo Caravan Park Pty Ltd v Curyer[2006] QDC 122
Monte Carlo Caravan Park Pty Ltd v Curyer[2006] QDC 122
DISTRICT COURT | No D891 of 2006 |
APPELLATE JURISDICTION
JUDGE BRABAZON QC
MONTE CARLO CARAVAN PARK PTY LTD ACN 054 981 252 | Appellant |
and
HEDLEY CURYER AND JUNE CURYER | Respondents |
BRISBANE
..DATE 11/05/2006
JUDGMENT
HIS HONOUR: Mr and Mrs Curyer have lived for more than 30 years at site 18 of the Monte Carlo Caravan Park at Cannon Hill. They own the structures there. There is a dispute with the owner of the caravan park. Do they live in a caravan or a caravan plus a manufactured home, or a single structure that can be called a manufactured home? These distinctions are important to them and to the owner of the park. They have different consequences because of the provisions of the Residential Tenancies Act and the Manufactured Houses (Residential Parks) Act.
The evidence before the Tribunal showed that the caravan was manufactured in 1973 and registered in their name in 1975; number plate QV 1479 was attached. By 2005 a dispute had arisen. The present situation of the physical structure appears from the report of the engineer, Mr Hoskins, and several photographs.
It can be seen that there is still the caravan registered number QV 1479 on the site. It is complete with towbar, axle and wheels. It has had added to its roof what is described as a fly roof, that is to say, a separate roofing structure elevated for some distance, no doubt to keep the sun off, and held up by a series of struts or rods extending down to the caravan's own roof.
Beside and joined to the caravan is what would be called a mobile home. Mr Hoskins called it that. It is a structure attached to the side of the caravan. It sits on blocks on the ground. It is tied down by chains to stakes in the ground and, according to the plans, it has about the same floor area as the caravan. The photograph show the two doors lead from this annexe, as it was called, into the caravan. Because of Mr Hoskins' report it seems that the original one (or perhaps two) doors going into the caravan were enlarged.
Joining the annexe so that it projects out in front of the caravan is a small covered deck. It is about one-quarter of the area of the annexe. At the front of the deck are steps leading down to the ground. Those plans to which I have referred to can be seen at pages 150 and 151 of the volume containing the material handed to me today.
There was a contest in the Commercial and Consumer Tribunal about the status of these structures. The judgment of the Member, Mr Gallagher, was given on the 2nd of March this year. He found that overall the combined structure is not a caravan but a manufactured home. The question here is whether or not there is an error of law involved in that conclusion.
It is necessary to turn to the two statutes which I mentioned above. It might be noted that an earlier decision by Judge McGill of this Court about some related diffieulties has been very helpful in this case. See Limbada and Others -v- Ahearn and Others [2005] QDC 164.
It is necessary to look at the definition of “manufactured home” in section 10 of that Act:
“A manufactured home is a structure, other than a caravan or tent, that—
- (a)has the character of a dwelling house; and
- (b)is designed to be able to be moved from one position to another; and
- (c)is not permanently attached to land.”
In this case it became clear that there is no contest about requirements (a), (b) and (c). All had been demonstrated to apply to this structure. The question is, was it a caravan? That would take it outside the definition. It was accepted here that these structures fell within the definition either of “manufactured home” or “caravan”. That definition is to be found in section 3A of the Retail Tenancies Act:
“A ‘caravan’ is a trailer—
- (a)designed principally for residential purposes, and;
- (b)designed to be attached to and towed by a self-propelled vehicle; and
- (c)that, as originally designed, was capable of being registered under a law of the State about the use of vehicles on public roads...”
Likewise, there was no contest here about the requirements in subsections (a), (b) and (c). The attention was focussed on whether or not the original caravan remained as “a trailer” which is the opening component of the definition. The notion of a trailer is not defined but it appears readily enough from the definition of a caravan, that is to say, it is designed to be attached to and towed by a self-propelled vehicle.
No doubt, speaking generally, a caravan or any trailer may be so changed structurally that it could not fairly be described as a trailer. If that were so, it would have lost its essential function. More importantly, in my opinion, it is necessary to consider the effect the additions to the caravan structure have in the present case. One has to look at the extent and the effect of the additions, the type of structure, that is to say, either a light flimsy one or a substantial one and the role it plays with the caravan structure. The time the structures have been in place might also be relevant.
What is described as an annexe is not flimsy in the sense that that term is sometimes used in relation to caravans. Rather it is what might be called a permanent mobile home. That is to say, it has a substantial roof and walls and floor.
In my opinion, the argument about the changes to the quality of the trailer should be accepted. That is to say, in truth, it is no longer a trailer at all because of what has happened to it in this case. Functionally, it has become one structure with the additions.
In this regard, it is helpful to quote a passage of Mr Hoskins' second report which was relied upon by the learned member. Part of it reads this way:
“During this inspection this firm formed the opinion that the building consisted of two structure dutifully joined to form a manufactured home.
The first section is a mobile home caravan which due to annexe construction has been altered and amended.
The second is a constructed annexe using normal building techniques to so incorporate a lounge, sitting room and front porch.
The second construction is affixed to the north side wall of the aforementioned caravan, section 1.
Given the modifications of incorporating large structural openings in this north wall this firm would be of the opinion that the removal (demolition) of the annexe would so render this caravan non-structural for removal by towing in the normal manner.
Notwithstanding the caravan shell with the now evident structural opening would be structurally unsound for its intended purpose as a mobile home and would be unsound to be taken on a public road without undertaking major reconstruction to establish this unit in a sound state that it could be re-registered for such a purpose.”
That evidence, which was uncontested accurately, describes what has happened in this case. It does not seem realistic to describe structures all on one site under mixed categories of caravan and manufactured home. That is another reason for regarding the present structure as one manufactured home.
It was said in the Retail Tenancies Act, sections 117 to 119, contemplated such a change to premises. These, indeed, are “premises” as defined and they are changes. But the Act does not say or imply that the character of the final result cannot be regarded because of the changes.
In my opinion, the finding of the Tribunal was correct. There is no error of law and, therefore, the appeal must be dismissed.
...
HIS HONOUR: Order that the respondent's costs of the application for leave to appeal and this appeal be assessed on the standard basis and paid by the appellant.