Broad & Ors v INA Operations Trust No 3 t/as Ingenia Lifestyle Bethania [2024] QCAT 217

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Broad & Ors v INA Operations Trust No 3 t/as Ingenia Lifestyle Bethania [2024] QCAT 217 PARTIES: ALLAN MAXWELL BROAD SYDNEY BROAD BRIAN ADSHEADS HUBERT VAN HOOF KAREN VAN HOOF DAVID LUMLEY VALERY LUMLEY (applicants) v INA OPERATIONS TRUST NO 3 T/AS INGENIA LIFESTYLE BETHANIA (respondent) APPLICATION NO/S: OCL062-22 MATTER TYPE: Other civil dispute matters DELIVERED ON: 21 May 2024 HEARING DATE: 21 May 2024 HEARD AT: Brisbane DECISION OF: Member Kanowski ORDER: The application is dismissed. CATCHWORDS: LANDLORD AND TENANT – RENT – GENERALLY – where communal facilities unavailable after flood – whether facilities withdrawn – whether substantial decrease in amenity Manufactured Homes (Residential Parks) Act 2003 (Qld), s 4, s 17, s 72 APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) REASONS FOR DECISION Introduction [1] The applicants are residents at the Ingenia Lifestyle Bethania park which is owned by the respondent. The park is regulated under the Manufactured Homes (Residential Parks) Act 2003 (Qld) (‘Manufactured Homes Act’). -- 1 of 5 -- 2 [2] The applicants seek a 33% site rent reduction for a 17-week period on the basis that communal facilities were withdrawn from use by Ingenia for that period after flooding damage in late February / early March 2022. They apply under section 72 of the Manufactured Homes Act. That section allows the tribunal to order a reduction in site rent when a communal facility or service has been withdrawn or when the amenity or standard of common areas and communal facilities has substantially decreased. [3] Ingenia opposes the application. Background [4] The applicants say that facilities at the Verandahs Clubhouse were withdrawn. These included a heated swimming pool, a gymnasium, a craft assembly workshop and storage areas, table tennis room, pool/snooker tables, a dartboard area, two bar areas, a social activity area with a kitchen, under-cover verandahs, and toilets and change rooms. They say these facilities represented a major part of the facilities available when they signed their site agreements. [5] The list above comes from page 1 of the applicants’ statement filed on 12 October 2022, but a longer list appears at page 6, including for example ‘TV with Foxtel’ and ‘access to the lake and surrounding area’. The applicants say ‘the Verandahs Clubhouse provides the river and lake (dam) outlook, an important consideration when we initially purchased’.1 [6] They say that 33% for a rent reduction is a fair estimate ‘based on our prior life and business experiences’.2 They add that they do not have access to any accounting records of Ingenia which might reveal how rent is allocated to different purposes, so they can only estimate. They say that ‘the closure of the facilities represents over 95% of the facilities understood at the time of signing of our site agreements’.3 [7] The applicants note that Ingenia did take some steps to compensate residents: in April 2022 Ingenia wrote to all residents advising of a $10 per week ‘site-fee credit … for the duration of the restoration works’ as a ‘gesture of goodwill’, and contributions to groups ‘most affected by the recent flooding events’.4 These contributions were $1,500 to the community workshop group, $1,500 to the community garden group, and $500 to the archery group. The applicants say the $10 per week credit represents only a 5-6% rent reduction (as rent amounts vary); was done only in response to residents’ actions; and Ingenia offered no explanation of how this amount was calculated. [8] The applicants note that some parts of the Verandahs Clubhouse were gradually restored or modified, though less than satisfactorily in their view, and that some facilities were relocated but ‘none of the relocations restored the facility we had prior to the flood’.5 [9] The applicants acknowledge that another clubhouse, the Boulevard Clubhouse, was also available, but they say that it had been built to cater for an increased park population when the park had been expanded. They say the Boulevard Clubhouse 1 Applicant’s statement filed 12 October 2022, 7. 2 Ibid, 1. 3 Ibid, 6. 4 Letter from Ingenia to residents dated 13 April 2022. 5 Applicants’ statement filed 12 October 2022, 5. -- 2 of 5 -- 3 ‘was not designed or constructed as a replacement for the original Verandahs Clubhouse. Both clubhouses are shared by all residents with neither able to accommodate all … The Verandahs Clubhouse remained as our primary facility with only the library, IT components and bowling green shifted’.6 Further, ‘ … the closure of the Verandahs Clubhouse meant that there were compromises and inadequate accommodation for all residents’.7 [10] The applicants also say that residents had offered to assist with sandbagging the Verandahs Clubhouse as the flood threat loomed, but this was ‘disallowed by management citing unavailable resources’;8 however at the time of another potential flood in May 2022, management sought such assistance from residents. The applicants say ‘this raises questions on Management expertise and/or motivations with respect to the initial flood event’.9 The applicants also contend that the period of closure was extended beyond what was required to rectify flood damage, as Ingenia took the opportunity to make changes. [11] Ingenia acknowledges that some areas and facilities, such as the community garden, community shed, and dart boards were ‘offline’10 for 17 weeks. However, it says that most facilities in the Verandahs Clubhouse were either relocated within a short time (such as the pool tables and storage room) or already duplicated in the Boulevard Clubhouse (such as the pool, bars, and dance floor). It acknowledges that the ‘Gym and TV with Foxtel’11 in the Verandahs Clubhouse was not available, but says that gym equipment was relocated to the Boulevard Clubhouse. It says that the upper level of the Verandahs Clubhouse was reopened three weeks after the flood. Overall, it contends that it acted in a timely way in restoring or relocating facilities, and that it also spent money on upgrades to offline facilities. It characterises the events overall as the temporary closure of some areas for maintenance and repair, due to a flood, rather than a withdrawal of facilities. [12] Ingenia acknowledges that the Verandahs Clubhouse would have been the only clubhouse available when applicants had moved into the park, but it stresses that the facilities in the expanded park, including the Boulevard Clubhouse, had become available to all residents prior to the flooding in early 2022. Ingenia says the facilities at the Boulevard Clubhouse include a hall, dance floor, bar, kitchen, indoor bowls, an audio visual centre, an alfresco area with barbeques, and a library, pool and bowling green. [13] Ingenia argues that the $10 rent reduction it provided to residents during the 17-week period was fair and reasonable. It says only 2% of residents have pursued a further reduction, which indicates that most residents were satisfied. [14] Ingenia says that protecting the Verandahs Clubhouse from flooding by sandbagging would have been logistically impossible, because of staff unavailability, closed roads, and the other demands on the State Emergency Service. [15] In reply, the applicants argue that the low number of residents pursuing a further rent reduction merely reflects the time, effort and difficulty involved and ‘the demographic 6 Applicants’ statement filed 12 October 2022, 5. 7 Ibid, 7. 8 Ibid, 3. 9 Ibid, 7. 10 Affidavit of Stuart Geoffrey Fallis and Christopher John McBride filed 12 January 2023, 4. 11 Ibid. -- 3 of 5 -- 4 of the village [being] residents just wishing to live out retirement and … therefore reluctant to become involved’.12 [16] The applicants emphasise that the unavailable facilities represented ‘the major part of the facilities presented to us at the time of signing our respective site agreements …’.13 They emphasise the unavailability of some facilities, and the halving of others, such as there being one dance floor instead of two. They say the $10 per week reduction was not fair, but merely ‘token’.14 Legislative framework [17] The application is under section 72 of the Manufactured Homes Act, which relevantly says: 72 Site rent reduction for failure of communal facility or service etc. (1) This section applies if the home owner under a site agreement considers the site rent should be reduced because 1 of the following applies and the park owner does not agree to the reduction— (a) the amenity or standard of the residential park’s common areas and communal facilities has decreased substantially since the agreement was entered into; (b) a communal facility or service provided at the park when the agreement was entered into has been withdrawn; … (2) The home owner may, subject to section 116, apply to the tribunal for an order reducing the site rent under subsection (3). (3) If the home owner applies under subsection (2), the tribunal may make an order reducing the site rent by an amount the tribunal considers appropriate if the tribunal is satisfied of a matter mentioned in subsection (1)(a) to (c). … [18] Section 116 requires an attempt at mediation before a person can apply to the tribunal. That requirement has been satisfied in this case. [19] For context, it is relevant to note that an object of the Act is to regulate, and promote fair trading practices in, the operation of residential parks to protect home owners from unfair business practices.15 A park owner’s responsibilities under the Act include taking reasonable steps to ensure that the home owner has reasonable access to the common areas,16 and maintaining the common areas and communal facilities in a reasonable state of cleanliness and repair, and fit for use by the homeowner.17 12 Applicants’ statement filed 30 June 2023, 3. 13 Applicants’ affidavit filed 30 March 2023, 1. 14 Applicants’ reply filed 24 August 2023, 12. 15 Manufactured Homes Act, s 4(1). 16 Ibid, s 17(a)(ii). 17 Ibid, s 17(b). -- 4 of 5 -- 5 Findings and decision [20] It is common ground that certain facilities (such as the community garden) were unavailable, and that others were less available (such as there being one dance floor, instead of two) during the period in question. However, were the facilities withdrawn? The unavailability was due to flooding and the consequent need for repairs and reallocation of facilities. There is a suggestion in the applicants’ material that some facilities remained unavailable for longer than they needed to be because Ingenia took the opportunity to change them rather than merely repair them, but I am not persuaded that this was a significant factor. There is also a suggestion that Ingenia could have prevented inundation of the Verandahs Clubhouse by mobilising a sandbagging operation. However, I regard Ingenia’s evidence that this was not feasible as credible and convincing. [21] ‘Withdrawn’ connotes a decision to cease providing a facility. I find that the facilities here became unavailable or less available because of flooding, and the resulting need for repairs and reallocation, not because of a decision by Ingenia to cease providing the facilities. No doubt Ingenia told residents not to use the affected facilities and areas, but this was because the facilities and areas had become unusable or unsafe. Accordingly, section 72(1)(b) is not established. [22] The next question is whether, under section 72(1)(a), there was a substantial decrease in the amenity or standard of the park’s common areas and communal facilities. Such a decrease could occur in the absence of fault by a park owner, for example as a result of a natural disaster. [23] If one were to confine attention to the facilities available when the applicants bought into the park, an unrealistic picture would result. This approach would ignore the facilities that became available, particularly the Boulevard Clubhouse, when the park expanded. [24] When one considers the facilities available in the expanded park, I find that only a small range of facility types became totally unavailable for the entire period: the community garden, the dartboard playing area, and the community shed. I find that some facilities, such as the pool tables and gym equipment, were unavailable for only an initial period, pending relocation. [25] I find that the number of some facilities such as dance floors, bars and swimming pools, reduced. That reduction would have affected amenity in that it reduced choice and convenience. It could have further affected amenity if it resulted in rationing or overcrowding. However, there is no specific evidence of such effects, only general comments such as that there was inadequate accommodation. [26] Having regard to the large number and range of communal facilities and common areas that remained, and the temporary nature of the closures of certain facilities and areas during a flood recovery period, I am not persuaded that the decrease in amenity and standard can be described as substantial. Accordingly, section 72(1)(a) is not established. Conclusion [27] As neither of the potentially relevant criteria in section 72(1) is established, there is no basis for ordering a rent reduction. The application is therefore dismissed. -- 5 of 5 --