SUPREME COURT OF QUEENSLAND
CITATION: | Claremont Holdings Pty Ltd v The Chief Executive of the Department of Housing and Public Works; The Chief Executive of the Department of Housing and Public Works v Claremont Holdings Pty Ltd [2015] QSC 349 |
PARTIES: | CLAREMONT HOLDINGS PTY LTD ACN 010 347 038 (applicant) v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF HOUSING AND PUBLIC WORKS (respondent) THE CHIEF EXECUTIVE OF THE DEPARTMENT OF HOUSING AND PUBLIC WORKS (applicant) v CLAREMONT HOLDINGS PTY LTD ACN 010 347 038 (respondent) |
FILE NO/S: | SC No 10456 of 2015 SC No 11339 of 2015 |
DIVISION: | Trial |
PROCEEDING: | Originating Application |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | 10 December 2015 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 1 December 2015 |
JUDGE: | Flanagan J |
ORDER: | My initial view is that a declaration should be made in the terms of 1(a) of the Chief Executive’s originating application. I will hear the parties as to the final form of relief and costs. |
CATCHWORDS: | LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – JURISDICTION – where the applicant was the owner and operator of a park consisting of a number of sites, common areas and facilities – where the sites were permitted to be used by caravans, relocatable homes and/or permanent structures for the purpose of providing accommodation – where a number of sites had structures positioned on them that had the character of a dwelling house but were not permanently attached to the land (“the Homes”) – where the applicant entered into leases with persons in respect of site/s and use of the common areas – where the Homes were owned by the persons who leased site/s within the park – where the respondent Department was responsible for compliance with the Manufactured Homes (Residential Parks) Act 2003 (Qld) (“the Act”) – where the Act imposed specific lease agreement requirements to lease agreements within the jurisdiction of the Act – where the relevant lease agreements did not comply with the requirements of the Act but instead complied with the provisions of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (“RTA”) – where the respondent Department warned the applicant that it was in breach of the Act by failing to enter into agreements pursuant to the Act – where the applicant submits that the Act has no application as the park is not a “residential park” and the agreements are not “site agreements” within the Act – whether the park owned and operated by the applicant is a “residential park” – whether the Act or the RTA regulates the lease agreements entered into between the applicant and those leasing sites within the applicant’s park Manufactured Homes (Residential Parks) Act 2003 (Qld), s 4, s 8, s 10, s 12, s 13, s 14, s 23, s 25, Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 5(1), s 7, s 9, s 10, s 11, s 12, s 22, s 37, sch 2 Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10, cited Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421; [1972] HCA 61, cited |
COUNSEL: | SC No 10456/15 P Hackett for the applicant B McMillan for the respondent SC No 11339/15 B McMillan for the applicant P Hackett for the respondent |
SOLICITORS: | SC No 10456/15 H Drakos & Company Pty Ltd Solicitors for the applicant Crown Law for the respondent SC No 11339/15 Crown Law for the applicant H Drakos & Company Pty Ltd Solicitors for the respondent |
Statement of agreed facts
(a)120 sites;
(b)common areas; and
(c)facilities for the personal comfort, convenience, or enjoyment of persons residing in homes situated on sites in the Park.
(a)are not caravans;
(b)have the character of a dwelling house;
(c)are designed to be able to be moved from one position to another; and
(d)are not permanently attached to land.
(a)the payment of rent for the site/s by the Home Owner to Claremont;
(b)the positioning of the Home of the Home Owner on the site/s on which the Home is situated;
(c)the Home Owner’s non-exclusive use of the Park’s common areas and communal facilities; and
(d)special terms about the use and maintenance of the site.
(a)Sharon Park whose home is situated on sites 115 and 116;
(b)Edmund Charles Cavanough and Anne-Marie Cavanough whose home is situated on sites 45 and 48;
(c)Jamie Matheson whose home is situated on site 17A;
(d)Mike Claridge whose home is situated on site 153;
(e)Les Winn whose home is situated on site 24;
(f)Marie Stieler, whose home is situated on site 120;
(g)Aubrey Rieck and Rita Rieck, whose home is situated on site 97.
14The Act replaced the Mobile Homes Act 1989 (Qld) which was repealed by s 147 of the Act.
The origin of the dispute
“Aquatic Gardens Caravan Park contains manufactured homes owned by individuals who have entered into lease agreements with park owner Claremont Holdings Pty Ltd for the sites upon which their homes are placed. On that basis, it falls within the definition of a residential park and the site leases must be documented in a manufactured home site agreement.
To date the park owner, despite requirements issued from the Residential Services Unit, Department of Housing and Public Works, has refused to place home owners onto relevant site agreements as required.
By refusing to enter into manufactured home site agreements with home owners of manufactured homes within the residential park … the park owner Claremont Holdings Pty Ltd has failed to acknowledge home owners rights conferred upon them by the provisions of the [Act].
By requiring that home owners enter only into moveable dwelling residential tenancy agreements rather than manufactured homes site agreements the park owner is excluding the application and operation of the Act within the park, and is restricting the rights of home owners by failing to acknowledge their rights under the Act. The park owner is entering into residential tenancy moveable dwelling agreements with the intention either directly or indirectly, to defeat the operation of the Act.”
“Our client’s position is that, as has always been conveyed to you, the 120 sites on Lot 1 comprising the Aquatic Gardens Caravan Park are not sites available for rent under a site agreement. That is because lot 1 is not zoned to be operated as a residential park but rather as a tourist park (formally known as a caravan park). As such, the 120 sites on Lot 1 are ‘premises’ within ‘moveable dwelling premises’ as defined by the [RTA]. It is for that reason that your client has to date and continues to enter into agreements pursuant to the RTA. Consistent with our client’s position is the inability on the part of our client to comply with the mandatory requirements of the [Act].”
“Development approval and zoning of a property does not affect the status of Aquatic Gardens as a residential park under the [Act].
…
By recognising Aquatic Gardens Caravan Park as a residential park, we are simply recognising that it is a park that includes sites with owner occupied manufactured homes.
Your further assertion that your client is correctly using the Moveable Dwelling tenancy agreement form 18b under the RTA, is incorrect. As per the attached RTA publication Managing caravan park tenancies in Queensland, (pg 5) these agreements are only for use when tenants are renting a caravan and a site, a site only for the placement of a caravan, or renting a manufactured home. The information produced by the Residential Tenancy Authority for caravan park owners specifically states (see inside cover of booklet – highlighted) – ‘The Act (Residential Tenancies and Rooming Accommodation Act 2008) does not apply to owner-occupied manufactured homes (see Manufactured Homes (Residential Parks) Act 2003).” (emphasis in original)
The Manufactured Homes Act – relevant provisions
(a)to protect home owners from unfair business practices; and
(b)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.”[6]
(a)declaring particular rights and obligations of the park owner, and home owners, for a residential park; and
(b)facilitating the disclosure of information about a residential park, and this Act, to a prospective home owner for a site; and
(c)regulating––
(i)the making, content, assignment and ending of a site agreement; and
(ii)the sale of an abandoned manufactured home positioned on a site in a residential park; and
(iii)the variation of site rent; and
(d)facilitating participation by home owners for a residential park in the affairs of the park; and
(e)providing ways of resolving a site agreement dispute.
“What is a residential park
A residential park is an area of land that includes––
(a)sites; and
(b)common areas; and
(c)facilities for the personal comfort, convenience or enjoyment of persons residing in manufactured homes positioned on sites.
(a)provides for––
(i)the rental by the home owner of particular land in a residential park; and
(ii)the positioning on the land of a manufactured home; and
(iii)the home owner’s non-exclusive use of the park’s common areas and communal facilities; and
(b)includes provision about anything else required or permitted by this Act to be in the agreement.”
(1)Each of the following is a home owner––
(a)a person who owns a manufactured home that is positioned on a site in a residential park under a site agreement;
(b)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;
(c)a person who obtains an interest in a site agreement as the personal representative, or a beneficiary of the estate, of a deceased individual who immediately before the individual’s death was a person mentioned in paragraph (a) or (b);
(d)another successor in title of a person mentioned in paragraph (a) or (b).
(2)A person mentioned in subsection (1)(a) is a home owner whether––
(a)the person occupies the home as the person’s principal place of residence; or
(b)a tenant of the person occupies the home.
“(1)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.
(2)A manufactured home does not include a converted caravan.
(3)However, if a park owner and the owner of a converted caravan enter into an agreement, that would be a site agreement if it related to a manufactured home, for a site on which the converted caravan is positioned or intended to be positioned––
(a)the converted caravan is taken to be a manufactured home; and
(b)the agreement is taken to be a site agreement.
(4)To remove any doubt, it is declared that an agreement entered into under another Act or a former Act, other than the repealed Mobile Homes Act 1989, is not a site agreement under subsection (3).
Example –
A residential tenancy agreement entered into under the Residential Tenancies and Rooming Accommodation Act 2008 is not a site agreement under subsection (3).”
The RTA – relevant provisions
moveable dwelling means a caravan or manufactured home.
moveable dwelling park means a place where moveable dwellings are situated for occupation on payment of consideration.
moveable dwelling premises means premises consisting of––
(a)for a moveable dwelling that is a caravan––the dwelling or its site, or both the dwelling and site; or
(b)for a moveable dwelling that is a manufactured home in, or intended to be situated in, a moveable dwelling park––the dwelling or its site, or both the dwelling and site.
(a)the manufactured home is owned by the same person or entity as the site upon which it is positioned, and both are offered for rental; or
(b)the manufactured home is owned by a different person or entity than the owner of the site upon which it is positioned, and the home is offered for rental under a residential tenancy agreement.
This is the effect of s 37(2) of the RTA discussed in paragraph [20] above.
Consideration
“(1)Premises, for a residential tenancy, include a part of premises and land occupied with premises.
(2)Premises, for a residential tenancy, also include––
(a)a caravan or its site, or both the caravan and site; and
(b)a manufactured home in, or intended to be situated in, a moveable dwelling park or its site, or both the manufactured home and site; and
(c)a houseboat.”
A further reference to “premises” is made in s 22 of the RTA:
“In this Act, unless a contrary intention appears, a reference to premises is a reference to a residential premises under a residential tenancy agreement to which this Act applies.”
The definition of “premises” in the RTA only makes a tenancy agreement under the RTA appropriate in circumstances where tenants are renting a caravan and a site, a site only for the placement of a caravan, or renting a manufactured home. The RTA in my view has no application to the present situation as identified in the statement of agreed facts. It does not apply where land owned by a park owner is leased to a home owner who positions a manufactured home on the site.
“●All caravans/mobile homes residing in this park must be owner occupied and not used for renting out.”
It is irrelevant that the rental is of the site only. It is also irrelevant whether a lessee under the agreement may either leave the site vacant, pitch a tent, place a caravan or position a manufactured home on the site. An agreement may still “provide for the positioning on the land of a manufactured home” even if it also provides for or permits other matters. Further, as a matter of construction, the special term set out above contemplates and therefore provides for the placement of a manufactured home. Not only does the special term contemplate the positioning of the manufactured home on the relevant site, a specific restriction is imposed. By the special term, if a home owner positions their manufactured home on a site in the Park, they must be an owner occupier and are prohibited from renting the home to a third party.
Relief
“… declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have a ‘real interest’ and relief will not be granted if the question ‘is purely hypothetical’, if relief is ‘claimed in relation to circumstances that [have] not occurred and might never happen’ or if ‘the Court’s declaration will produce no foreseeable consequences for the parties’.”
(a)The Department is responsible for administering and ensuring compliance with the Act;[13] and
(b)The Department has issued Claremont with a warning notice alleging offences by it against the Act;[14]
(c)If the Park is a “residential park” for the purposes of the Act, and Claremont fails to ensure any agreement between it and any “home owner” in relation to a “site”, as defined in the Act, is a written agreement compliant with Part 5, Division 1 of the Act, Claremont will be liable to prosecution for an offence or offences against the Act.
[1] Transcript of proceedings, 1 December 2015, 1-31, lines 22-45; 1-32, lines 1-6.
[2] Exhibit KHM-05 to the affidavit of Katherine Michelle Harvey sworn 1 December 2015.
[3] Exhibit ‘IM-2’ to the affidavit of Ingrid Martland sworn 16 October 2015.
[4] Exhibit ‘IM-5’ to the affidavit of Ingrid Martland sworn 16 October 2015.
[5] Exhibit ‘IM-6’ to the affidavit of Ingrid Martland sworn 16 October 2015.
[6] Manufactured Homes (Residential Parks) Act 2003 (Qld) s 4(1).
[7] Manufactured Homes (Residential Parks) Act 2003 (Qld) s 4(2).
[8] Residential Tenancies and Rooming Accommodation Act 2009 (Qld) s 5(1)(a).
[9] Outline of submissions on behalf of the Chief Executive of the Department of Housing and Public Works dated 1 December 2015, [32].
[10] Exhibit ‘IM-3’ to the affidavit of Ingrid Martland sworn 16 October 2015.
[11] Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421, 435 (Gibbs J).
[12] Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 582 (Mason CJ, Dawson, Toohey and Gaudron JJ).
[13] Statement of agreed facts, [12].
[14] Exhibit ‘IM-2’ to the affidavit of Ingrid Martland sworn 16 October 2015.
