Palmpoint Pty Ltd v The Residents of Bribie Pines Island Village
[2007] QDC 130
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- Palmpoint Pty Ltd v The Residents of Bribie Pines Island Village[2007] QDC 130
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Palmpoint Pty Ltd v The Residents of Bribie Pines Island Village[2007] QDC 130
Palmpoint Pty Ltd v The Residents of Bribie Pines Island Village[2007] QDC 130
DISTRICT COURT OF QUEENSLAND
CITATION: | Palmpoint Pty Ltd v The Residents of Bribie Pines Island Village & Ors [2007] QDC 130 |
PARTIES: | PALMPOINT PTY LTD (ACN 010 864 472) t/as “Bribie Pines Island Village” Appellant v THE RESIDENTS OF BRIBIE PINES ISLAND VILLAGE First Respondents and MOLLY ASTBURY Second Respondent and ROY TERRENCE HOSE & PATRICE ANN HOSE Third Respondents |
FILE NO/S: | 1711/2006 |
DIVISION: | Civil |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Brisbane |
DELIVERED ON: | 10 May, 2007 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 30 April 2007 |
JUDGE: | Dearden DCJ |
ORDER: |
|
CATCHWORDS: | Appeal – Commercial and Consumer Tribunal – Mobile Homes – Site Rent Increases |
LEGISLATION: | Acts Interpretation Act 1954 (Qld) ss 14(1) and 14(2). Manufactured Homes (Residential Parks) Act 2003 (Qld) ss 4(1), 5, 5(1), 5(2), 5(3), 16, 17, 20, 21, 23, 25, 25(1), 25(4)(d)(i), 25(4)(d)(ii), 25(4)(d)(iii), 26, 27, 68, 69, 69(1), 69(2), 69(2)(d), 70, 70(2), 70(3), 71, 71(1), 71(2), 71(2)(d), 71(4), 71(6), 71(7) and 72(7). Mobile Homes Act 1989 (Qld) |
CASES: | Palmpoint Pty Ltd t/as Bribie Pines Island Village v The Residents of Bribie Pines Island Village, Molly Astbury, Roy Terrence and Patrice Ann Hose [2004] CCT MH 020-05 |
COUNSEL: | Mr S Couper for the appellant Mr P Hastie for the respondent |
SOLICITORS: | Hopgood Ganim Lawyers for the appellant Deacons for the respondents |
Introduction
- [1]This is an appeal from a decision of the Commercial and Consumer Tribunal (“the Tribunal) in respect of the construction of ss 69 and 71 of the Manufactured Homes (Residential Parks) Act 2003 (“MHRPA”), which regulate the issue of increases in site rents in residential parks.
Background
- [2]The appellant is the owner of the manufactured home park trading as “Bribie Pines Island Village” located at the corner of Cotterill Avenue and Goodwin Drive, Bribie Island. The appellant made an application on 22 September 2005 in the Tribunal seeking an order confirming site rent increases based on a market review of site rents pursuant to MHRPA s 71. The respondents (some 85 whom are listed by schedule as “the first respondents”, as well as the second and third respondents) are owners of manufactured homes positioned on sites in the park who have either not accepted the proposed increase in site rent, or had not provided the appellant with a written response indicating whether or not they agreed with the proposed response within the time required in MHRPA s 71(4).[1] The Tribunal dealt with the issue as to whether or not the appellant had an entitlement pursuant to MHRPA s 71 as a preliminary legal issue. The Tribunal made the following findings as to the interpretation of MHRPA s 71 namely:-
“(a) If a site agreement does not provide for any increase in site rent during its term, then neither s 69 nor s 71 applies and the park owner cannot increase the site rent during the term;
- (b)If the site agreement does provide for an increase in site rent during its term and states how the amount of the increase is to be calculated, then s 69 applies; and
- (c)If the site agreement does provide for an increase in site rent during its term but does not state how the amount of the increase is to be calculated, then s 71 applies.”[2]
- [3]The Tribunal went on to find that “s 71 does not apply to the proposed site rent increase in this case and the applicant is not entitled to seek approval pursuant to an application under s 71(7) for the proposed site rent increases to be imposed on the respondents. The proposed site rent increases are in breach of the respondent’s site agreements and are invalid. The applicant was not entitled to issue a Notice of Increase in Rent pursuant to s 71(2) in July 2005 and the Notice was invalid”.[3]
- [4]The Tribunal consequently ordered:-
“(i)the application is dismissed.
- (ii)
Further Factual Issues
- [5]The Tribunal’s decision at paragraphs 9 and 10 sets out the factual background relevant to the preliminary legal issue which is the subject of this appeal.[5]
“9.Each respondent is a party is to one of three different types of site agreement as follows –
(i)Old site agreement which:
(a)provides for annual rent increases only; and
(b)has no provision for market rent reviews;
- (ii)Caravan Parks Association of Queensland Inc Mobile Homes Act 1989 (Qld) site agreement which:
(a)provides for annual rent increases; and
(b)provides also for market rent reviews;
- (iii)New Manufactured Homes (Residential Parks) Act 2003 (Qld) site agreement which:
(a)provides for annual rent increases; and
(b)provides also for market rent reviews.
“10.The [appellant] states in its statement of claim [before the Commercial and Consumer Tribunal] that, in or about late July 2005, it caused to be forwarded to each of the residents of the park a Notice of Increase in Rent pursuant to s 71 of the Act based on a market review of rent. As at the date of filing of the application, 90 sites had accepted the proposed increases in site rent out of the 198 sites at the park. The applicant has submitted that there are currently 207 sites in the park and 71 of those sites have market rent review clauses in their site agreements. Of the park residents who have disputed the site rent increases imposed, 11 have market rent review clauses in their site agreements. The applicant concedes that the site rent increases, the subject of this application, are outside the terms of the respondent’s site agreement.”
Legislative Framework
- [6]The Manufactured Homes (Residential Parks) Act 2003 repealed the Mobile Homes Act 1989, and the main object of the MHRPA “is to regulate and promote fair trading practices in the operation of residential parks”.[6] There is an obligation on park owners to ensure that site agreements are written[7] and such agreements must include “the standard terms”[8] as well as any special terms[9], and in particular, the agreement must state “the site rent and other charges payable under the agreement”[10], “when site rent and other charges are payable and how they must be paid”[11] and “how and when the site rent may be varied.”[12]. The park owner is obliged to ensure that a site agreement is written, and a breach of that obligation carries a criminal sanction of 200 penalty units (i.e. $15,000)[13]. A site agreement continues until the agreement is terminated[14] and “a successor in title of the park owner under a site agreement obtains the benefits and is subject to the obligations of the park owner in relation to the agreement”[15]. Home owners’ responsibilities are specified under the MHRPA[16], as are park owners’ responsibilities[17]. A site agreement is void to the extent to which it purports to exclude, change or restrict the application or operation of a provision of the MHRPA[18].
- [7]MHRPA Part 11 (ss 68 – 74) provides for “varying site rent”. MHRPA s 68 provides that “the site rent payable under a site agreement may only be varied in the ways stated in this part” (i.e. Part 11). MHRPA s 69(1) entitled[19] “Notice of increase in site rent” with a divisional heading[20] “Increase in site rent provided for in site agreement”[21] provides:
“(1) This section applies if a site agreement –
- (a)provides for an increase in the site rent payable under the agreement; and
- (b)states how the amount of the increase is to be calculated.”
- [8]
“(1)This section applies if –
- (a)the park owner for a residential park wishes to increase the site rent payable under a site agreement; and
- (b)section 69 does not apply to the proposed increase”.
- [9]Where a park owner seeks to increase the site rent under MHRPA s 69, the park owner is obliged to give the home owner a notice in terms of MHRPA s 69(2), and if the home owner considers the increase is excessive, the home owner may apply to the Tribunal within 28 days after receiving the notice, for an order reducing the amount of or setting aside the increase[24]. On the other hand, where a park owner seeks to increase site rent pursuant to MHRPA s 71, then the home owner must, within 28 days after receiving the Notice of Proposed Increased Site Rent, give the park owner a written response indicating whether or not the home owner agrees to the proposed increase[25]. If there is no written response from the home owner within 28 days[26], or if there is no agreement to the proposed increase within 28 days, then the park owner may apply to the Tribunal for an order about the proposed increase[27].
- [10]The mechanism for ascertaining whether the proposed increase in site rent should be allowed is set out in MHRPA s 70. In particular, the criteria to be considered by the Tribunal are set out in MHRPA s 70(3). Where the park owner seeks to increase the rent under MHRPA s 69, it is the home owner who has the option of applying to the Tribunal, and bears the onus in respect of persuading the Tribunal[28] in respect of the options available to the Tribunal pursuant to MHRPA s 70(2), whereas a proposed increase by a park owner under MHRPA s 71(1) to which a home owner does not agree, requires the park owner to make the application[29], for which the park owner bears the onus. The criteria to be applied by the Tribunal in considering the application[30], however, are the same criteria utilised to consider a home owner’s application under MHRPA s 69.
Respondent’s Submissions
- [11]The respondents submit that MHRPA s 69 “covers the field with respect to increases in site rent where a site agreement makes provision for an increase in site rent and states how the amount of the increase is to be calculated”[31]. The respondents assert that if the site agreement contains a provision providing for an increase in site rent and the mode of calculation, then the legislation provides no other way of increasing site rent, and MHRPA s 71 applies only “if there is no provision in the [site] agreement providing for an increase in the site rent and stating how the amount of the increase is to be calculated.”[32]
Analysis of Respondents’ Submissions
- [12]The structure of the MHRPA mandates written agreements between home owners and park owners, with the sanction of a criminal penalty for non-compliance[33] and further mandates (among other provisions) the inclusion of a provision as to “how and when the site rent may be varied”[34]. The respondents’ interpretation of the effect of MHRPA s 71 would mean that the only park owners who would be eligible to apply under that section would be those park owners who were in breach of the mandatory provisions of MHRPA s 25. Such an interpretation, with due respect to the respondents’ submissions (and the findings of the learned member of the Tribunal), would, in my view, be absurd.
- [13]I do not consider there is any ambiguity in the structure or wording of the legislation. Clearly, MHRPA s 69 provides for the default position under which a park owner can seek to increase site rent pursuant to the provisions of a site agreement which has site rent increase provisions in the agreement, whereas MHRPA s 71 (as flagged by the divisional heading “Other way of increasing site rent”) caters for all other situations (i.e. non-compliant site agreements with no site rent increase provisions, but also (and more likely), site agreements where the park owner seeks an increased site rent in excess of the parameters specified by the site agreement). For example, as is apparently the situation in this particular residential park, the site agreement may have no provision for market rent reviews, or may have antiquated or impractical mechanisms for managing market rent reviews. In the context of legislation which provides for (in essence) perpetual site agreements[35], it is a perfectly logical and appropriate approach to the issue of increasing site rent to permit a park owner to seek an increase in site rent, subject of course to satisfying the Tribunal in respect of the relevant criteria contained in MHRPA s 70(3).
- [14]Although I do not consider that the provisions of MHRPA s 71 are ambiguous, I note that the Minister’s Second Reading Speech[36] states that “the Bill recognises that park owners may have valid reasons to increase the rent outside of the agreement and the Bill establishes a procedure where home owners have the opportunity to agree to the increase or, if they do not agree, for the park owner to make an application to the Tribunal. Tribunal guidelines apply to these applications.” Similarly, the Explanatory Notes[37] state that “Clause 71 provides that where a park owner wishes to increase the site rent outside of the site agreement, the park owner must give the home owner a notice stating the amount and basis for the proposed increase, the date the proposed increase is payable, and that the home owner must advise within 28 days whether the home owner agrees to the proposal. If the proposal is rejected, the park owner has the right to make an application to the Tribunal for an order about the proposed.”
- [15]Even if I were in error in not considering the provisions of MHRPA s 71 to be ambiguous, the clarification provided by the Second Reading Speech and the Explanatory Notes makes it clear that MHRPA ss 69 and 71 represent alternatives available to park owners to increase site rent, either within the terms of a site agreement[38] or outside the terms of a site agreement[39], with the relevant criteria to be considered in respect of either application being that set out in MHRPA s 70(3).
- [16]The learned Tribunal Member placed some emphasis in her decision on the provisions of MHRPA s 5[40]. However, it should be noted that MHRPA s 5(3) provides that “in sub-sections (1) and (2), a reference to a right or remedy a person would have apart from [the MHRPA] is a reference to a right or remedy that is consistent with [the MHRPA]”. In short, the additional rights and remedies which are available both to home owners and park owners under the MHRPA are supplementary to common law rights, so long as those rights are consistent with the MHRPA. I do not consider the provisions of MHRPA s 5 can be utilised to read down the provisions of MHRPA s 71 such that it has no practical or effective operation.
Findings
- [17]I consider that the learned Member of the Tribunal erred in law in her interpretation of MHRPA s 71[41]. In my view, as I have outlined above, MHRPA s 69 provides for park owners who seek to increase the site rent pursuant to a site agreement that contains provisions for increasing the site rent, whereas MHRPA s 71 is a provision which enables park owners to seek to increase site rent either outside the terms of any such site rent increase provision, but also covers the unlikely event of a park owner seeking to increase site rent either where no written site agreement exists, or where there is a written agreement, but it does not contain a site rent increase provision.
Order
- [18]Accordingly, I order as follows:-
- (1)Appeal allowed.
- (2)The order of the Tribunal made 15 May 2006 is annulled.
- (3)The case is remitted to the Tribunal for further hearing in accordance with these reasons.
Costs
- [19]I will hear the parties on costs.
Footnotes
[1] Palmpoint Pty Ltd t/as Bribie Pines Island Village v The Residents of Bribie Pines Island Village, Molly Astbury, Roy Terrence and Patrice Ann Hose [2004] CCT MH 020-05, para 1.
[2] Palmpoint Pty Ltd t/as Bribie Pines Island Village v The Residents of Bribie Pines Island Village, Molly Astbury, Roy Terrence and Patrice Ann Hose [2004] CCT MH 020-05, para 53.
[3] Palmpoint Pty Ltd t/as Bribie Pines Island Village v The Residents of Bribie Pines Island Village, Molly Astbury, Roy Terrence and Patrice Ann Hose [2004] CCT MH 020-05, para 54.
[4] Palmpoint Pty Ltd t/as Bribie Pines Island Village v The Residents of Bribie Pines Island Village, Molly Astbury, Roy Terrence and Patrice Ann Hose [2004] CCT MH 020-05, para 56.
[5] Palmpoint Pty Ltd t/as Bribie Pines Island Village v The Residents of Bribie Pines Island Village, Molly Astbury, Roy Terrence and Patrice Ann Hose [2004] CCT MH 020-05, paras 9 and 10.
[6] MHRPA s 4 (1).
[7] MHRPA s 25(1).
[8] MHRPA s 20.
[9] MHRPA s 21.
[10] MHRPA s 25(4)(d)(i).
[11] MHRPA s 25(4)(d)(ii).
[12] MHRPA s 25(4)(d)(iii).
[13] MHRPA s 25(1) and see Penalties and Sentences Act 1992 (Qld) s 5(1)(b).
[14] MHRPA s 26.
[15] MHRPA s 27.
[16] MHRPA s 16.
[17] MHRPA s 17.
[18] MHRPA s 23.
[19] Pursuant to Acts Interpretation Act 1954 (Qld) s 14(2), the section heading is part of the Act (given that MHRPA was enacted after 30 June, 1991).
[20] Pursuant to Acts Interpretation Act 1954 (Qld) s 14(1), a heading to a Division is part of the Act.
[21] MHRPA Part 11, Division 2.
[22] Pursuant to Acts Interpretation Act 1954 (Qld) s 14(1), a heading to a Division is part of the Act.
[23] Pursuant to Acts Interpretation Act 1954 (Qld) s 14(2), the section heading is part of the Act (given that MHRPA was enacted after 30 June, 1991).
[24] MHRPA s 69(2)(d)
[25] MHRPA s 71(2)(d)
[26] MHRPA s 71(6)
[27] MHRPA s 71(7).
[28] MHRPA s 69(2)(d).
[29] MHRPA s 72(7).
[30] MHRPA s 70(3).
[31] Outline of Submissions on behalf of the Respondents, para 6.
[32] Outline of Submissions on behalf of the Respondents, para 7.
[33] MHRPA s 25(1).
[34] MHRPA s 25(4)(d)(iii).
[35] MHRPA s 26.
[36] Manufactured Homes (Residential Parks) Bill – Second Reading Speech – 19 August 2003 (Honourable M Rose – Minister for Tourism and Racing and Minister for Fair Trading), Hansard p. 2935.
[37] Manufactured Homes (Residential Parks) Bill 2003 – Explanatory Notes p. 19
[38] MHRPA s 69.
[39] MHRPA s 71.
[40] Palmpoint Pty Ltd t/as Bribie Pines Island Village v The Residents of Bribie Pines Island Village, Molly Astbury, Roy Terrence and Patrice Ann Hose [2004] CCT MH 020-05, para 46.
[41] Palmpoint Pty Ltd t/as Bribie Pines Island Village v The Residents of Bribie Pines Island Village, Molly Astbury, Roy Terrence and Patrice Ann Hose [2004] CCT MH 020-05, para 53.