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Trinity Place Investments Pty Ltd v Kealley[2024] QDC 77

Reported at (2024) 4 QDCR 91

Trinity Place Investments Pty Ltd v Kealley[2024] QDC 77

Reported at (2024) 4 QDCR 91

DISTRICT COURT OF QUEENSLAND

CITATION:

Trinity Place Investments Pty Ltd v Kealley [2024] QDC 77

PARTIES:

TRINITY PLACE INVESTMENTS PTY LTD

ACN 609 933 511

(Applicant)

v

VIVIEN BETTY KEALLEY 

(Respondent)

DIVISION:

CIVIL

PROCEEDING:

3876/23

ORIGINATING COURT:

DISTRICT COURT

DELIVERED ON:

29 May 2024 

DELIVERED AT:

Gympie

HEARING DATE:

28 March 2024

JUDGE:

Porter KC DCJ

ORDER:

  1. The Court declares that it has jurisdiction to hear and determine the Applicant’s originating application filed 22 December 2023. 
  1. The Court orders that the originating application be adjourned for hearing to a date to be fixed.

CATCHWORDS:

LANDLORD AND TENANT – application for possession on lot located in a park regulated by the Manufactured Homes Act 2003 – where cabin located on the lot is part of a duplex structure – where the cabin is not designed to be moved separately from the other duplex – whether the cabin by itself is a manufactured home as defined – whether the lease is a site agreement as defined – whether the District Court has jurisdiction to hear and determine an application for possession 

LEGISLATION:

Acts Interpretation Act 1954 (Qld), ss 4, 32C(5), 43C(5)

Manufactured Homes (Residential Parks) Act 2003 (Qld)

COUNSEL:

Mr G. Coveney for the Applicant

Mr M. White for the Respondent

SOLICITORS:

M. Behlau & Associates for the Applicant

Hawkes Lawyers for the Respondent  

Summary

  1. [1]
    The respondent (Ms Kealley) is the owner of a dwelling (Cabin 34) on a small area of land, held under a registered lease, and located in a residential park called Maroochy Cabins, near Maroochydore (the Park).  The applicant (Trinity) is the current owner of the park.  Cabin 34 comprises one half of a single building, arranged internally as a duplex.  Ms Kealley and Trinity are parties to an agreement (the Agreement) pursuant to which Ms Kealley leases the site upon which her half of the building, comprising Cabin 34, is located (the Site).  Trinity has purported to terminate the Agreement for non-payment of amounts it contends are due under the Agreementm and seeks an order for possession of the Site. 
  2. [2]
    The Manufactured Homes (Residential Parks) Act 2003 (Qld) (the Act) regulates manufactured homes located on sites in residential parks under site agreements (as those several terms are defined in the Act).  If the Act applies such that the Agreement is a site agreement under the Act, it is common ground that the originating application for possession must be dismissed because, pursuant to that Act, in the circumstances which exist in this case, a site agreement may only be terminated by order of QCAT on application by Trinity.  No such order has been obtained by Trinity.
  3. [3]
    On the hearing of Trinity’s originating application, the parties invited the Court to determine that matter first, as a preliminary point, albeit no formal order was made to that effect.   I agreed in that approach.  For the reasons which follow, I find that Cabin 34 is not a manufactured home, Ms Kealley is not a home owner, and the Agreement is not a site agreement under the Act.   Accordingly, the Act does not apply to Trinity’s application for possession, and the originating application for possession may proceed in this Court pursuant to the Court’s jurisdiction conferred by s. 68(1)(b)(xi) District Court Act 1967.

The Act 

  1. [4]
    The Act is the successor statute to the earlier Mobile Homes Act 1989 (Qld).  Both Acts comprised a statutory response to the issues which arise for persons dwelling in homes which are designed to be able to be moved from place to place but are frequently located long term in parks designed for such dwellings.  It is a common characteristic of such arrangements that the resident leases the site on which the mobile/manufactured home is located, from the park owner, but the resident owns the dwelling separately, effectively as a chattel.  Persons dwelling in such parks on leased sites are frequently long term or permanent residents of such parks, reliant on the park owner for maintaining the ambience and quality of park.  The view was taken by Parliament that this particular from of living arrangement required a statutory framework to ensure proper management of the parks, and of the rights and obligations of both parties under site agreements.  The Explanatory Memorandum to the Act reflects this policy objective as follows:

Reasons for the Bill

The Mobile Homes Act 1989 was introduced to provide security of tenure for people owning mobile homes and renting sites in residential parks.  The Mobile Homes Act 1989 provides a legal framework to address particular issues relevant to residents and owners of mobile home parks.

One of the main policy objectives of the Mobile Homes Act 1989 was to limit the grounds on which the agreement to site the mobile home in a park and to reside in the homes as the person’s principal place of residence may be terminated.  The Small Claims Tribunal was given authority to hear and to determine disputes under the Mobile Homes Act 1989 and in certain circumstances, on application by the park owner, to terminate site agreements.

[…]

Complaints have been received from home owners that the Mobile Homes Act 1989 does not address issues which have emerged since its commencement.  In particular, home owners have complained about high rents, inadequate contracts, withdrawal of services, deterioration of park facilities and alleged bullying, harassment and intimidation by park owners and managers.

  1. [5]
    The Explanatory Memorandum states that the Act endeavours to recognise and balance the competing interests of home owners and residential park owners.  That purpose is reflected in the objects of the Act which relevantly provides:
  1. The main object of this Act is to regulate, and promote fair trading practices in, the operation of residential parks—
  1. to protect home owners from unfair business practices; and
  1. to enable home owners, and prospective home owners, to make informed choices by being fully aware of their rights and responsibilities in their relationship with park owners.
  1. The main object is achieved by—
  1. declaring particular rights and obligations of the park owner, and home owners, for a residential park; and

[…]

I  regulating—

  1. the making, content, assignment and ending of a site agreement; and
  1. the sale of an abandoned manufactured home positioned on a site in a residential park; and
  1. the variation of site rent; and

[…]

(e) providing ways of resolving a residential park dispute.

  1. The following are also important objects of this Act—
  1. encouraging the continued growth and viability of the residential park industry in the State;
  1. providing a clear regulatory framework to ensure certainty for the residential park industry in planning for future expansion.
  1. [6]
    The scope of the Act is articulated by reference to some key definitions.   It is convenient to take them a little out of section numerical order.
  2. [7]
    A “manufactured home” is defined in section 10 as follows:

What is a manufactured home

  1. A manufactured home is a structure, other than a caravan or tent, that-
  1. has the character of a dwelling house; and
  1. is designed to be able to be moved from one position to another; and
  1. is not permanently attached to land.
  1. [8]
    A manufactured home therefore must have four characteristics: it must be a structure, it must have the character of a dwelling, it must be designed to be able to be moved, and it must not be permanently attached to land.   All these characteristics are necessary for a place used as a dwelling to be a manufactured home. To foreshadow a key issue, one duplex of two, contained in a single structure, might face difficulty with meeting the definition if the structure which includes both duplexes is designed to be moved, but each of the individual duplexes are not.
  2. [9]
    A “home owner” is defined by section 8, as follows:

8 Who is a home owner

  1. Each of the following is a home owner—
  1. a person who owns a manufactured home that is positioned on a site in a residential park under a site agreement;
  1. a person who intends to position a manufactured home on a site in a residential park under a site agreement for use by the person as the person’s principal place of residence;

[…]

  1. A person mentioned in subsection (1)(a) is a home owner whether—
  1. the person occupies the home as the person’s principal place of residence; or
  1. a tenant of the person occupies the home.
  1. [10]
    Notably, the effect of the express words of the definition is that a person is only a home owner under the Act if the person owns a manufactured home (as defined).
  2. [11]
    There are definitions of “park owner and “residential park”.  However, it is common ground that Trinity is a park owner as defined, and the Park is a residential park as defined. Those definitions do not assist in resolving the question in this matter.
  3. [12]
    The application concerns the Agreement, which is a lease of the site of Cabin 34 between Ms Kealley and Trinity.  Ms Kealley contends that the Agreement is a “site agreement” as defined.  The Act provides by section 14:

14 What is a site agreement

A site agreement is an agreement between a park owner and a home owner that—

  1. provides for—
  1. the rental by the home owner of particular land in a residential park; and
  1. the positioning on the land of a manufactured home; and
  1. the home owner’s non-exclusive use of the park’s common areas and communal facilities; and
  1. includes provision about anything else required or permitted by this Act to be in the agreement.
  1. [13]
    Again, notably, the effect of the express words is that an agreement will only be a site agreement if it is between a park owner and a home owner (as defined), and the agreement provides for the positioning on the land rented by the home owner of a manufactured home (as defined).
  2. [14]
    The balance of the Act makes use of these key definitions in regulating the rights and responsibilities of home owners and park owners. 
  3. [15]
    Part 5 regulates site agreements: Division 1 regulates terms of site agreements, and Division 2 regulates entering site agreements.  
  4. [16]
    Part 6 regulates the termination of site agreements.  It relevantly provides:
    1. By section 32, that a site agreement may only be terminated under Part 6 or Part 8 (Part 8 regulates abandoned manufactured homes and has no relevance to rights to terminate in this application); sections 33 to 35, for termination of a site agreement during the statutory cooling off period, by notice from the home owner.
  5. [17]
    Part 6 Division 3 deals with termination in other circumstances.  It provides:
    1. By section 36, for termination by agreement in accordance with that section;
    2. By section 37, for termination by the home owner unilaterally; and
    3. By section 38, for termination by the tribunal.
  6. [18]
    It is common ground that, if the agreement is a site agreement under the Act, section 38 is the only provision which authorises termination by Trinity in the current circumstances.  Section 38 provides:

38 Termination of site agreement by tribunal

  1. On application by the park owner under a site agreement, the tribunal may make an order (a termination order) terminating the agreement on any of the following grounds—
  1. the home owner—
  1. has contravened a term of the agreement; and
  1. has failed to remedy the contravention after being given by the park owner a notice, in the approved form, requiring the home owner to remedy the contravention within 28 days after the notice is given;
  1. the home owner has assaulted a person who was lawfully in the residential;
  1. the home owner has wilfully destroyed property, other than the home owner’s property, on the residential park or site;
  1. the home owner is using the site other than as a place of residence;

Example of the home owner using the site as a place of residence—

the home owner using the site as rental accommodation

  1. the home owner, or the home owner’s tenant or guest—
  1. repeatedly interferes, or has repeatedly interfered, with the quiet enjoyment of the residential park by the park’s residents; and
  1. continues, or has continued, the behaviour mentioned in subparagraph (i) after the park owner gives the home owner a notice, in the approved form, requiring the home owner to stop the behaviour;
  1. the park owner wishes to use the residential park land, or a part of the park in which the site is located, for another purpose stated in the application (the stated purpose).
  1. [19]
    It is a common feature of the statutory grounds for termination under Part 6 that the Act requires the home owner to give vacant possession of the site (that is, with the manufactured home removed).  An example is section 39(1) which requires that:
  1. If a termination order is made relating to a site agreement, the order must —
  1. state the day (the termination day) the termination is effective; and
  1. require the home owner under the agreement to give the park owner vacant possession of the site on or before the termination day.
  1. [20]
    Division 3 of the Act also makes provision for compensation orders where the park owner terminates the site agreement under section 38(1)(f), including by section 40:
  1. This section applies if the tribunal intends making a termination order, in relation to a site agreement, on the ground mentioned in section 38(1)(f).
  1. The tribunal must, in conjunction with the order, make an order (the compensation order) that the park owner pay the home owner compensation for the termination of the agreement.
  1. If the home owner intends relocating the manufactured home to another location if the termination order is made, the tribunal may have regard to the following when making the compensation order—
  1. the estimated costs of removing the home from the site;
  1. the estimated costs of transporting the home and the home owner’s personal effects to the otheIocation;
  1. the estimated costs of positioning the home at the other location;
  1. anything else the tribunal considers relevant.
  1. [21]
    Notably, that right applies only to a site agreement and a manufactured home, as defined under the Act.
  2. [22]
    Part 7 regulates assignment of a home owner’s interest in a site agreement. The Part applies “if the home owner for a site in a residential park (the seller) on which a manufactured home is positioned proposes […]” to sell the home to a buyer and assign the seller’s interest in the site agreement to the buyer.  The Part goes on to make detailed statutory provisions regulating the rights of the buyer, the seller and the park owner in relation to such sale/assignments, which are largely directed at ensuring fairness and disclosure to the potential buyer/assignee and facilitating such transactions on behalf of the seller.  See, for example, section 49 which imposes a reasonable grounds condition on any refusal of the park owner to consent to the sale/assignment. 
  3. [23]
    Part 9 regulates sale of manufactured homes positioned on a site.  Parts 10 and 11 regulate site rental in some detail.  It defines how and when rent may be paid and requires record keeping by park owners.  It provides a detailed mechanism to be followed if a park owner seeks to increase rent under a site agreement.  It also provides a mechanism for reduction of rent under a site agreement, if the home owner under a site agreement considers that the facilities of the park are not being maintained. 
  4. [24]
    Part 13 regulates park rules.  It is mostly directed at conferring rights on home owners to object to changes in the rules and creating a mechanism for resolving disputes about such matters.  Part 14 regulates operations of park owners and imposes obligations on home owners in respect of operations in the park.  Part 16 sets out the obligations imposed by statute as to the behaviour of park owners and home owners.
  5. [25]
    Finally, Part 17 deals with resolution of “residental park disputes”.[1]  Division 1 creates procedures for alternative dispute resolution by negotiation and mediation.  Division 2 confers jurisdiction on QCAT to resolve residential park disputes.  It relevantly provides:
    1. By section 115:

A party to a residential park dispute may, subject to section 116, apply to the tribunal for an order to resolve the dispute.

  1. By section 116 for compulsory mediation for most disputes, though not for exempt dispute;
  2. By section 117:

If a party to a residential park dispute applies to the tribunal for an order in relation to the dispute, the tribunal may make the following orders—

  1. an order the tribunal is authorised to make in relation to the application under another provision of this Act;
  2. any other order the tribunal considers appropriate to resolve the dispute.
  1. [26]
    There is no provision which I could locate in the Act which expressly excludes the jurisdiction of the District Court (or the Supreme Court for that matter).  The District Court, however, is a Court of statutory jurisdiction.  It will not have jurisdiction in respect of matters arising under the Act unless its jurisdiction arises from a statutory provision which confers civil jurisdiction.  The provision most likely to provide a source of such jurisdiction, in respect of an action to recover possession of the Site, is section 68(1)(b)(xi) District Court Act 1967.
  2. [27]
    In that regard, that jurisdiction will be confined by section 5 which provides:

Rights and remedies of persons

  1. A right or remedy given to a person under this Act is in addition to, and not in substitution for, a right or remedy the person would have apart from this Act.
  1. Without limiting subsection (1), this Act does not operate to reduce the effect of a right or remedy a person would have apart from this Act.
  1. In subsections (1) and (2), a reference to a right or remedy a person would have apart from this Act is a reference to a right or remedy that is consistent with this Act.

The facts

The lease

  1. [28]
    On 1 July 1992, the Agreement was entered into.  The Agreement is a misnomer because it comprised a lease of a parcel of land located within the Park (being the Site), and was entered into between predecessors in title of Trinity, as park owner/lessor, and of Ms Kealley, as lessee.  The demised land was identified as Unit 34, being a site located at the Park.  The lease term was 97 years.  The plan attached to the Agreement showed Unit 34 hatched on plan of the Park as follows:

 Trinity Place Investments Pty Ltd v Kealley [2024] QDC 77

  1. [29]
    As can be seen, the Site adjoins another marked site.  It is uncontentious that that adjoining site is leased to another tenant, and that the various sites identified on the diagram generally reflects the sites leased to other persons who live at the Park.
  2. [30]
    The lease expressly excludes the lease of any dwelling by the lessor.  However, it contemplates a dwelling being placed on the Site.  The lease relevantly:
    1. Defines “demised premises” in clause 1.13 to mean:

The term “Demised Premises” means that part of the said Land which is hatched in black on the plan annexed hereto and shall not include any demountable home or aother improvements erected by the Tenant on the said land at the date of commencement of any time thereafter.

  1. Defines “demountable home” in clause 1.14 to mean:

The words “Demountable Home” means the home erected or maintained on the Demisted Premises by the Tenant from time to time with the consent of the Landlord.

  1. Provides by clause 16:

16.01 TENANT TO YIELD UP: The Tenant shall at the expiration or sooner determination of the term hereof yield up the Demised Premises in good order and condition.

16.02 TENANT’S RIGHT TO REMOVE DEMOUTNABLE HOME AND FITTINGS: The Tenant may and in any case shall if required by the Landlord at any time […] remove from the Demiste Premises the Demountable Home […]

  1. [31]
    At the time the lease was entered into, leases of sites in residential parks which contemplated demountable homes being placed on the sites were regulated by the Mobile Homes Act.  The lease plainly contemplates that statutory scheme in its terms.  However, despite the date of the lease, both parties agree that the relationship of the parties under the Agreement is regulated, if at all, by the Act.
  2. [32]
    The Agreement was assigned to Ms Kealley in about 2008.  Together with the assignment of the benefit of the Agreement, the then lessee also sold Ms Kealley the part of the duplex located on the Site.  Such an assignment of the lease of a site, and sale of a manufactured home located on a site, is a common form of transaction involving a manufactured home located in a park, regulated under the Act, as is plainly contemplated by Part 7 of the Act, discussed at [22] above.  

Cabin 34

  1. [33]
    It appears that the Park was designed to accommodate both individual dwellings and duplex dwellings.  So much is evident from the Maroochy River Resort brochure in evidence, and the aerial photograph of the Park.[2]  It is also evident from the lease plan above that duplexes were capable of being located on adjoining sites.  
  2. [34]
    Cabin 34 is an example of a duplex dwelling located on adjoining sites at the Park.  Ms Kealley’s dwelling is located on lot 34, while her adjoining neighbour’s duplex is located on the adjoining lot 35.  The Agreement relates to lot 34 and I assume her neighbour, who occupies the other half of the duplex, has a lease of lot 35.
  3. [35]
    Fundamental to the resolution of this issue is the structural character of Cabin 34.   There is the report of Mr Roulsten, a structural engineer.  His report contains photographs and a floor plan of the duplex structure which includes both the dwelling on lot 34 and on lot 35.  He concludes:

The structure is not permanently attached to the land and can be easily detacted from the supports to enable reolocation.  In our opinion the building has been designed to be relocatable.  The bearer orientation makes the building easily moveable.

The structure is of an overall size that permits it to be lifted and moved as a whole in one piece.  Hence it could be moved form one position to another…

[underlining added]

  1. [36]
    Mr Roulsten uses the words “structure” and “building” interchangeably.  It is, however, clear that both terms refer to the whole structure, comprised of both duplexes, Cabin 34 and Ms Kealley’s neighbour’s cabin.  That follows, inter alia, from his opening comment that the Cabin 34 was “a small building structure approximately 15.5m x 8m”.  The floor plan at figure 2-4 shows that those measurements apply to the whole structure, not to Cabin 34 alone. 
  2. [37]
    On that basis, Mr Roulsten’s opinion is that the whole duplex structure is designed to be lifted and moved and could be so lifted and moved.  I accept that conclusion.  Importantly, however, he makes no observation about whether that portion of the structure, which constitutes Cabin 34 alone, was designed to be able to be moved.  The inference is that it could not, because the engineering characteristics identified by Mr Roulsten which make it capable of being moved apply only to the whole structure.   
  3. [38]
    That is an obvious inference given that the dividing wall between Cabin 34 and the adjoining cabin is marked as a non-structural wall; effectively a petition installed to divide up the structure into two parts.  There does not appear to be any provision in the design for separating the single structure into two separate pieces.  So much is confirmed by Mr Copland’s evidence.  He is a home mover and was asked about the process for relocating just Cabin 34, separate from the adjoining neighbour.  He observes that to do so would require cutting the Cabin 34 section from the adjoining cabin, leaving it without a structural wall where the cutting occurred.  
  4. [39]
    Based on that evidence, Cabin 34 (separate from the rest of the structure, of which it is a part) is not designed to be able to be moved. 

The issue for determination

  1. [40]
    The principal relief sought by Trinity is for possession of the Site.  Ms Kealley submits that Trinity cannot succeed on its application for that relief because in the circumstances of default alleged by Trinity, the site agreement may only be terminated by the tribunal on application by Trinity under section 38 of the Act.
  2. [41]
    Trinity agrees that that would be the position if the Act applied to the Agreement.  However, Trinity contends that the Act does not apply to the Agreement because Cabin 34 is not a manufactured home as defined under the Act, principally because it does not meet the requirement in the definition that it be designed to be moved from one position to another.

Analysis   

  1. [42]
    The circumstances in which Ms Kealley finds herself are broadly of the kind which the Act is concerned to regulate.  She lives in (part of) a manufactured home structure, which part she owns, and she is a party to an agreement with a park owner which separately leases a site on which Cabin 34 is located.   The difficulty, however, is that the Act does not seem to contemplate duplex structures, where there are two dwellings within a single structure, where the dwellings are not designed to be moved separately.
  2. [43]
    Let us start with the definition of manufactured home.   There are four elements which must be met by a building for it to be a manufactured home:
    1. It must be a structure;
    2. It must have the character of a dwelling house;
    3. It must be designed to be moved from one position to another; and
    4. It must not be permanently attached to the land.
  3. [44]
    Cabin 34 arguably meets the first, second and fourth elements of the definition.  However, as I have found, it is not designed to be moved from one position to another, at least not separately from the balance of the structure of which it forms a part.  Cabin 34, therefore, is not by itself a manufactured home.
  4. [45]
    The consequence is that Mr Kealley cannot be a home owner, as defined.  That is because a home owner is defined relevantly as a person who owns a manufactured home that is positioned on a site in a residential park.  If Cabin 34 is not a manufactured home, Ms Kealley cannot be a home owner under the Act.
  5. [46]
    Further, if she is not a home owner, the Agreement cannot be a site agreement under the Act, because such an agreement must be between a park owner and a home owner as defined.  Further, a site agreement provides for the lease of land and for the positioning on the land of a manufactured home.  Ms Kealley’s lease is for a lot upon which Cabin 34 is located, but Cabin 34 is not a manufactured home.
  6. [47]
    This point goes beyond mere literal construction.  Important provisions of the Act are premised on the assumption that a home owner owns a structure which is designed to be moved, rather than just a part of a structure, which part is not designed to be moved. Section 39 of the Act provides an example.   Pursuant to section 39, a home owner will not be able to give vacant possession of a site if the tribunal make a termination order.  That could only be done by cutting up the existing structure and leaving the adjoining neighour with no wall or no structurally sustainable dwelling.  That is not a problem just for section 39; it is a problem for all the provisions which require vacant possession, including sections 36 and 37.
  7. [48]
    Section 40 provides another example.  How could that section be applied if there are effectively two home owners for the one manufactured home structure, with one duplex owner wanting to leave the structure in place, and the other duplex owner wanting to move the structure and seek compensation?  Similar problems arise in application of sections 35 and 40A.
  8. [49]
    As I have said, Ms Kealley’s personal circumstances are of a kind which the Act would likely intend to regulate.  Indeed, many of the provisions of the Act could apply where a home owner only owns part of a structure which is designed to be moved.  Can the words of the statute be construed in a manner which might allow its provisions to apply to Cabin 34 despite the above analysis of the express words of the relevant provisions?
  9. [50]
    One way that might be achieved is by reference to section 32C(5) Acts Interpretation Act 1954 (Qld) (AIA).  That provides that words in the singular include the plural.  If that rule of interpretation was applied to the words “dwelling house” in the definition of manufactured home, then it might be argued that a structure will be a manufactured home relevantly, if the structure has the character of a dwelling house or houses.  Thus while the focus of attention would be on the structure comprising Cabin 34 and 35, it could be argued that the whole structure is a manufactured home comprising two dwellings.
  10. [51]
    However, section 43C(5), like all the interpretation provisions in the AIA, is subject to a contrary intention appearing in the Act: see section 4 AIA.  In my view, a contrary intention is disclosed by other words in the Act.
  11. [52]
    The statutory definition of home owner cannot accommodate a definition of manufactured home which includes more than one dwelling, at least where there is more than one owner of different parts of the single manufactured home structure.  That definition does not contemplate more than one home owner (other than circumstances of co-ownership of the whole manufactured home) for each manufactured home.  A person who owns half of the structure which meets the definition of manufactured home is not a person who “owns a manufactured home”, they only own half of a manufactured home.  The same problem arises in construing section 8(1)(b).
  12. [53]
    That problem could be addressed by reading the words “part of” into the definition, so that it reads as follows (my addition in italics):
  1. Each of the following is a home owner—
    1. a person who owns a manufactured home or a dwelling that is part of a manufactured home that is positioned on a site in a residential park under a site agreement;
  1. [54]
    There are two difficulties with construing the provision in this manner.
  2. [55]
    First, it is very difficult to reach the necessary construction from the words used in the definition, as can be seen from the number of words required to be read into the provision to achieve a meaning which would cover Cabin 34.  There is no longer any principle permitting Courts to construe the words used in a statute as if they contained other or additional words unless the words appearing in the statute can be so construed[3] (if there ever was any such principle).  Ultimately, construction must be text based.[4]  The Court’s power ends where it moves from construction of words used, to judicial legislation.  In Taylor v Owners - Strata Plan No 11564 (2014) 253 CLR 531, French CJ, Crennan and Bell JJ relevantly observed (footnotes omitted):

Lord Diplock’s speech in Wentworth Securities laid emphasis on the task as construction and not judicial legislation. In Inco Europe Lord Nicholls of Birkenhead observed that even when Lord Diplock’s conditions are met, the court may be inhibited from interpreting a provision in accordance with what it is satisfied was the underlying intention of Parliament: the alteration to the language of the provision in such a case may be “too far-reaching”. In Australian law the inhibition on the adoption of a purposive construction that departs too far from the statutory text has an added dimension because too great a departure may violate the separation of powers in the Constitution.

  1. [56]
    Second, even if the definition was properly able to be construed as if those words were included, one confronts again the problem that the provisions of the Act dealing with delivery of vacant possession and for compensation cannot sensibly operate where there are several owners of different parts of a single manufactured home structure.  The plain assumption upon which these key provisions are based is that a manufactured home owned by a party to a lease of a site for that home can remove it if the lessor is entitled to possession of the land.  The problem of “duplex” structures which are not designed to be separately moved was simply not considered, and it creates real world problems with regulation of vacant possession and compensation provisions, which are a matter for Parliament to work out. 
  2. [57]
    Ms Kealley relied on the evident common understanding of the various parties that the Agreement was a site agreement regulated by the Mobile Homes Act and the Act.  Even if that is correct, such an understanding cannot stand against the words of the statute.

Conclusion

  1. [58]
    I accept that if the Agreement was a site agreement under the Act, this Court would not have jurisdiction to hear and determine Trinity’s application for possession.  That conclusion flows from the consideration that the Act provides that a site agreement under the Act can only be terminated under Part 6 of the Act, and in this circumstance, can only be terminated by an order of QCAT.  To my mind, that express statutory provision excludes, by necessary implication, applications for possession of sites in parks to which the Act applies it applies from the scope general conferral of jurisdiction on the Court to hear actions to recover possession of land. 
  2. [59]
    However, I have found that the Act does not apply to the Agreement in this case.  Accordingly, Trinity’s application falls within the scope of the general conferral of jurisdiction in respect of actions to recover possession of land, on the assumption that the value of the land is less than the monetary limit.  In this case, I think that assumption a safe one.
  3. [60]
    The Court therefore has jurisdiction to hear and determine Trinity’s application for possession of the site on which Cabin 34 is located, and it seems to me that the correct way to dispose of that preliminary issue is by making a declaration to that effect. 
  4. [61]
    Given the practical difficulties I have identified in the removal of Cabin 34 separately from its adjoining dwelling, some thought will have to be given to whether any order for vacant possession is to be sought and, if so, whether it can and should be made.  I note that presently the order sought does not seek vacant possession.
  5. [62]
    It is a highly inconvenient result for the efficient, orderly, and fair management of manufactured homes located in parks, designed for such dwellings that duplexes of the kind in this case, are not within the scope of the detailed regulation for manufactured homes, created with so much care by the Parliament.  It is a matter which would benefit from the speedy resolution by appropriate amendments to the Act and might be one of the circumstances where some retrospective aspect is justified.

Footnotes

[1] Section 14A defines a residential park dispute broadly.  It is apt to apply to disputes about the numerous rights and obligations imposed by the statute on home owners, park owners, buyers and sellers of manufactured homes

[2] Affidavit of Southern CD 10 at exhibits pp 6 and 7.

[3] Taylor v Owners - Strata Plan No 11564 (2014) 253 CLR 531 per French CJ, Crennan and Bell JJ at [37] to [40] and Gaegeler and Keane JJ at [65] to [66].

[4] R v A2 (2019) 269 CLR 507 at 520 to 522.

Close

Editorial Notes

  • Published Case Name:

    Trinity Place Investments Pty Ltd v Kealley

  • Shortened Case Name:

    Trinity Place Investments Pty Ltd v Kealley

  • Reported Citation:

    (2024) 4 QDCR 91

  • MNC:

    [2024] QDC 77

  • Court:

    QDC

  • Judge(s):

    Porter KC DCJ

  • Date:

    29 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
R v A2 (2019) 269 CLR 507
1 citation
Jump To
Cite 1 - (2019) 269 CLR 507
Taylor v Owners - Strata Plan No 11564 (2014) 253 CLR 531
2 citations
Jump To
Cite 1 - (2014) 253 CLR 531
Cite 2 - (2014) 253 CLR 531

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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