Emmetlow Pty Ltd t/as Colonial Village v Pomroy [2015] QCATA 131

CITATION: Emmetlow Pty Ltd t/as Colonial Village v Pomroy [2015] QCATA 131 PARTIES: Emmetlow Pty Ltd t/as Colonial Village (Applicant/Appellant) v Gregory Malcolm Pomroy (Respondent) APPLICATION NUMBER: APL543-14 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member O’Callaghan Member Gordon DELIVERED ON: 2 September 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. Appeal dismissed. 2. Leave to appeal is refused. CATCHWORDS: APPEAL – Manufactured Homes (Residential Parks) Act 2003 – meaning and effect of s 99A – park owner’s charges for utilities – how they can be calculated – whether a service fee can be charged – whether parties agreed separately that service fee was payable – whether money claim is required to give the Tribunal jurisdiction – whether new point could be raised on appeal – whether adequate reasons given for costs order limited to the filing fee Acts Interpretation Act 1954 (Qld), s 14, s 14A, s 14B Electricity Act 1964 (Qld), s 20J Electricity Competition and Protection Legislation Amendment Act 2014 (Qld), s 12 Manufactured Homes (Residential Parks) Act 2003 (Qld), s 22, s 14A, s 99, s 99A Manufactured Homes (Residential Parks) Amendment Act 2010 (Qld) -- 1 of 23 -- 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102, s 105, s 135, s 142 Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 85 Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 165, s 167, s 170 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Beales & Wood v Kenmont Investments Pty Ltd t/as Ruby Gardens Residential Resort; Ballard & Ors v Kenmont Investments Pty Ltd t/as Sapphire Gardens Lifestyle Resort [2014] QCAT 127 Better Homes Queensland Pty Limited v O’Reilly & Anor [2012] QCATA 37 Brogden v Metropolitan Railway Co (1877) 2 App Cas 666 Emmetlow Pty Ltd (trading as Colonial Village) v Pomroy and Ors [2013] QCATA 186 Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 Keswick Developments Pty Ltd v Keswick Island Pty Ltd [2011] QCA 379 Mackay Sugar Ltd v Sugar Australia Pty Ltd [2013] QSC 233 Pickering v McArthur [2005] QCA 294 Pomroy v Emmetlow Pty Ltd [2014] QCATA 074 Ricchetti v Lanbuilt Pty Ltd [2011] QCATA 266 APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION [1] This is an appeal about what charges can be imposed by a residential park owner when supplying utilities to a home owner. [2] Mr Pomroy is a home owner in a mixed use tourist and residential park owned and operated by Emmetlow Pty Ltd. He claimed that he had been overcharged by Emmetlow since 1 March 2011 when s 99A was added to the Manufactured Homes (Residential Parks) Act 2003 (Qld). Section 99A limits the amount which can be charged by a park owner which supplies a utility to a home owner for the use of that utility. -- 2 of 23 -- 3 [3] In its decision delivered on 13 November 2014 the Tribunal found that Emmetlow had overcharged Mr Pomroy for electricity and water since 1 March 2011 and ordered Emmetlow to refund $1,206.91 and to pay Mr Pomroy’s filing fee of $150.00. The Tribunal also ordered Emmetlow to cease to charge Mr Pomroy service fees for the supply of utilities. [4] Emmetlow now appeals against this decision. [5] To supply electricity to home owners, Emmetlow purchases electricity from its supplier, which delivers it to the boundary of the park. Emmetlow then has a private network of power lines which supplies the electricity to each home owner and to various other facilities in the park. Each home owner has a separate meter. [6] Emmetlow bills each home owner for the electricity used less any government discount they may be entitled to. The amount to be charged for the electricity used is found by using a Ready Reckoner distributed by the Queensland Government. Emmetlow also adds a monthly service fee to the bill. [7] The Ready Reckoner is produced by the Government in order to assist on- suppliers of electricity to comply with their obligations under s 20J of the Electricity Act 1964 (Qld). This is an obligation not to charge more than the lowest available rate for the electricity. The Ready Reckoner is a table showing the appropriate charges for particular quantities of electricity (expressed in kilowatt hours) consumed over a period of time. [8] Emmetlow supplies water in a similar way, but the charges are calculated in a different way. The gross amount charged by the supplier for water consumption charges is divided by an amount to match the amount of water used by each home owner. Again an additional service fee, called a Water Access Fee, is charged. [9] In the evidence as cited by the Tribunal below1 and also in the submissions, it is said that Emmetlow charges these service fees because of its expenditure on the infrastructure required to provide the supplies of electricity and water to home owners. Also because Emmetlow has expenses in reading the meters and in billing the home owners. [10] Despite the addition of s 99A, Emmetlow did not change its method of calculating the electricity and water charges, and continued to charge the service fees. The relevant statutory provisions [11] In order to see the context of s 99A of the Manufactured Homes (Residential Parks) Act 2003 (Qld) it must also be read with s 99: 99 Separate payment by home owner for use of utility at site 1 Decision at [25]-[28]. -- 3 of 23 -- 4 (1) This section applies if, under a site agreement, the home owner is required to pay the park owner for the use by the home owner of a utility at the site. (2) The home owner may be required to pay for the use only if the use is separately measured or metered. 99A Separate charge by park owner not to be more than cost of supply for use of utility (1) This section applies if— (a) under a site agreement, the home owner is required to pay the park owner for the use by the home owner of a utility at the site; and (b) the use is separately measured or metered. (2) The park owner must not charge the home owner an amount for the use of a utility that is more than the amount charged by the relevant supply authority for the quantity of the service supplied to, or used at, the site. Maximum penalty—20 penalty units. [12] And the Dictionary in the Schedule provides: utility means any of the following services— (a) electricity; (b) gas; (c) sewerage; (d) water; (e) another service prescribed under a regulation. Grounds of appeal [13] In the application for leave to appeal or appeal (Form 39) the following grounds were given (adopting the numbering in the appeal application): (1) The tribunal erred in finding that Mr Pomroy’s application was a sufficiently quantified money claim that gave the tribunal jurisdiction to hear and determine the application. (2) The tribunal erred in finding that, on its proper construction, the “relevant supply authority” referred to in section 99A of the Manufactured Homes (Residential Parks) Act 2003 (Qld) is: a) “the organisation that supplies and charges for the service of supplying a quantity of a utility to its customer”, and b) for the purposes of Mr Pomroy’s application, was Origin Energy. (3) The tribunal erred in finding that, on its proper construction, section 99A of the Act: a) “applies equally to all utilities and provides simply [that] the park owner must not charge the home owner more than it is charged for a utility”; -- 4 of 23 -- 5 b) requires a park owner to “calculate the charges to the home owner by identifying what it is paying and then charging the home owner not more than that amount”; c) does not permit the Ready Reckoner to be used to calculate electricity charges. (4) The tribunal erred in finding that, on its proper construction, the requirements of section 99A of the Act are complied with by applying the “averaging calculation” with respect to the manner in which Mr Pomroy is charged for his usage of electricity. (5) The tribunal erred in finding that, on its proper construction, the site agreement between the parties: a) does not entitle the park owner to charge Mr Pomroy the “service fee” including the infrastructure costs or the service costs of reading electricity or water meters; b) provides that the “service fee” including the “infrastructure costs or the service costs of reading electricity or water meters” are included in the site rent payable by Mr Pomroy; c) contains no agreement between the parties for a service fee to be imposed for the delivery of utilities, such that there was no legislative or contractual basis for the park owner’s imposition of the fees (including the finding that Mr Pomroy’s payment of the service fee in the past, without objection, does not create an obligation to pay the service fee into the future without challenge), and in making Order 2 to this effect. (6) The tribunal erred in finding that, on its proper construction, section 99A of the Act had not been complied with by the park owner and that the park owner had overcharged Mr Pomroy $1,206.91, and in making Order 1 (and Order 4) to this effect. (7) The tribunal erred in making Order 3 (and Order 4) and ordering the park owner to pay Mr Pomroy’s costs (limited to the filing fee of $150) for the application. (8) The tribunal erred in failing to find that: a) on its proper construction, section 99A of the Act is to be interpreted and applied as follows: (1) for electricity, section 99A of the Act confirms the existing position under the Electricity Act 1994 (Qld), which permits park owners to use the Queensland Government’s “Ready Reckoner” to charge home owners for electricity that has been on-supplied to them; (2) for all utilities apart from electricity, section 99A of the Act requires that the park owner not charge the home owner an amount for the use of the utility that is more than the amount charged by the relevant supply authority for the quantity of the service supplied to or used at the site; and b) on its proper construction, the site agreement between the parties contractually entitles the park owner to charge Mr Pomroy the “service fee” (or any fee relating to “the infrastructure costs or the service costs of reading electricity or water meters”). -- 5 of 23 -- 6 (9) And orders are sought to reflect the appeal if successful. [14] One of the points made in response to this appeal by Mr Pomroy is that it is out of time. This is based on his belief that Emmetlow would have received the decision on Friday 14 November 2014. In fact Emmetlow states that it received it on 18 November 2014. In the circumstances the appeal is in time. Ground of appeal (1): no justiciable claim [15] Emmetlow argues that the Tribunal had no jurisdiction to hear the claim because the claim was not sufficiently quantified and because Mr Pomroy said at the hearing that it was ‘estimated’. It is also said that the Tribunal should not have heard the claim because Mr Pomroy did not file an amended claim as he had been ordered by the Tribunal to do. [16] The background to this ground of appeal is that on 29 July 2011 Mr Pomroy applied to the Tribunal for a declaration of the effect of s 99A (OCL095-11). He brought the claim against the same park owners as in these proceedings. On 7 February 2012, 24 other home owners were added as applicants to that claim. However on 25 June 2013 that application was dismissed on appeal.2 The reason why it was dismissed was that the claim was not for a money claim which could be classed as a ‘site agreement dispute’.3 Instead it was hypothetical and effectively asked ‘what does this section mean’? As such, the Tribunal had no jurisdiction to hear it. [17] This claim (OCL065-13) is similar to the claim presented to the Tribunal on 29 July 2011 in that it also relates to s 99A and claims that Emmetlow is overcharging for water and electricity. At first, on 17 September 2013, this claim was dismissed by the Tribunal because Mr Pomroy appeared to be relitigating matters which have already been litigated in OCL095-11 and dealt with on appeal. However, Mr Pomroy successfully appealed against this decision and the claim was reinstated.4 In the appeal, the Tribunal found that since the earlier claim OCL095-11 was dismissed on procedural grounds rather than on the merits, the matter could be relitigated. [18] Then the Appeal Tribunal gave directions to enable this claim to be dealt with. Firstly it noted that it suffered from the same problem as its predecessor in that it was not a quantified money claim, nor did it allege a specific basis for such a claim. It was not a justiciable claim as it stood because it merely sought an order ‘that all excess charges paid by the home owners since 1 March 2011 be refunded’.5 [19] But the Appeal Tribunal did not think it would be in the spirit of QCAT’s charter to order a second dismissal and gave directions instead to get the claim in order. Mr Pomroy had sought disclosure from the park owner of documents which would enable him to calculate the amount of the 2 Emmetlow Pty Ltd v Pomroy & Ors [2013] QCATA 186. 3 Under s 14A and s 140 of the 2003 Act. 4 Pomroy v Emmetlow Pty Ltd [2014] QCATA 074. 5 In fact there was only one home owner bringing the claim and that was Mr Pomroy. -- 6 of 23 -- 7 overcharge and therefore to formulate a proper money claim. The Appeal Tribunal made the disclosure order and then made the following orders (the appellant here referring to Mr Pomroy): 5. The appellant may file and serve an amended claim for the alleged excess charges, particularised by reference to the documents searched in Order 3, by 4pm on Friday 23 May 2014. 6. In the event that an amended claim is filed, the respondent must file a response to that application, two weeks following the 23 May 2014 and application OCL065-13 be returned to the tribunal for a directions hearing four weeks after the 23 May 2014. 7. If the appellant does not file an amended claim, the application OCL065-13 is dismissed without further order. [20] By a subsequent direction the date for compliance with the order to file an amended claim was enlarged to 6 June 2014. [21] Emmetlow now says that because Mr Pomroy did not file and serve an amended claim, the claim should have been dismissed at the hearing of the claim. It is not suggested that the claim was automatically dismissed by the operation of the self-executing order in [7]. [22] Mr Pomroy insists that he did file and serve an amended claim by calculating the extent of the excessive charges in a spreadsheet and by putting those in his submissions. [23] The question whether Mr Pomroy had complied with the direction to serve an amended claim, and also whether the claim was by the time of the hearing a ‘sufficiently quantified money claim’ was in issue before the learned Member hearing the claim in the Tribunal below. Emmetlow claimed that the answer to both these questions was ‘no’. [24] The learned Member pointed out that the Tribunal was required to deal with matters in an informal manner and Mr Pomroy was not legally represented. She referred to Mr Pomroy’s document filed on 28 May 2014 entitled ‘Supplement to Statement of GM Pomroy And Supplement to Submissions And Amended Claim’. Although it incorporated evidence, submissions and the amended statement of claim the learned Member was satisfied that it addressed the substantive requirements of the direction and that the direction had been complied with.6 [25] We agree with the learned Member that Mr Pomroy complied with the direction. It is notable that the direction did not specify how the amended claim should be filed. There is nothing in the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) or Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (‘QCAT Rules’) nor any practice direction, requiring an amendment to be done in any particular way. In the circumstances, Mr Pomroy could file the amendment by filing the document with the Tribunal as he did. 6 Decision at [9]. -- 7 of 23 -- 8 [26] The amended claim was for the sum of $2,144.25. This was not just a figure plucked out of the air, it was the result of a detailed spreadsheet7 which included a number of base figures including all Mr Pomroy’s meter readings for electricity, water and gas8 the amount he had paid, the average cost of electricity to Emmetlow and the service fee it had charged. The document included a detailed explanation how the amount claimed was calculated. [27] On this basis the learned Member was satisfied that the issues have been crystallised sufficiently to enable the Tribunal properly to decide the matter.9 [28] Emmetlow points out however that at the hearing Mr Pomroy amended the figures, and failed to explain how the new claimed amount was made up. Therefore, it is said, Mr Pomroy was not making a proper money claim as envisaged by the earlier appeal decision and the claim was not sufficiently quantified to give the Tribunal jurisdiction. [29] Whilst we do not agree that it was unclear how the amount claimed was calculated [as we explain when dealing with ground of appeal (6) below] we also disagree that a precise and accurate money claim is required in order to give the Tribunal jurisdiction. [30] The Tribunal’s jurisdiction as conferred by the s 140 of the 2003 Act: If there is a site agreement dispute, either party to the dispute may apply to the tribunal for an order, and the tribunal may make any order it considers appropriate, to resolve the dispute. [31] ‘Site agreement dispute’ is defined in s 14A of the 2003 Act: 14A What is a site agreement dispute (1) A site agreement dispute is— (a) a dispute between the parties to a site agreement about the parties’ rights and obligations under the agreement or this Act; or (b) a dispute about whether a person is entitled to have a park owner enter into a site agreement with the person; or (c) a dispute about whether a park owner is entitled to have a person enter into a site agreement with the park owner. (2) However, neither of the following is a site agreement dispute— (a) a dispute about whether a person is entitled to have a park owner enter into a site agreement with the person relating to a converted caravan; (b) a dispute about whether a park owner is entitled to have a person enter into a site agreement with the park owner relating to a converted caravan. [32] It is notable that s 14A does not require the dispute to be a money claim. The parties can be in dispute about their rights and obligations under the 7 In Annexure G of the document submitted on 28 May 2014. 8 Originally his claim was also in respect of gas but this was abandoned at the hearing. 9 Decision at [10]. -- 8 of 23 -- 9 agreement or the Act. In the context of s 99A this means that a dispute about the rights and obligations of the park owners and home owners under that section is within s 14A, provided they are parties to a site agreement. [33] It is clear that since s 99A was added on 1 March 2011 Emmetlow has contended that it may continue to calculate the utility charges in the same way as before and to charge a service fee, whereas Mr Pomroy contends that it may not. This is a dispute between them. It is justiciable in the Tribunal because it is a site agreement dispute within the terms of s 14A. [34] We confirm that s 14A does not require a money claim. We agree with the approach of Member Rogers in a dispute where there was no money claim, Beales & Wood v Kenmont Investments Pty Ltd t/as Ruby Gardens Residential Resort; Ballard & Ors v Kenmont Investments Pty Ltd t/as Sapphire Gardens Lifestyle Resort10 where she said: [30] Under s140 of the MH (RP) Act 2003 if there is a site agreement dispute either party may apply to the tribunal for an order. S14A (1) provides ‘a site agreement dispute is a dispute between the parties to a site agreement about the parties’ rights and obligations under the agreement or this Act. [31] It is accepted the parties have entered a site agreement, the issue is whether the parties have raised a ‘dispute’. [32] In the case of Emmetlow the learned Member states in para 9 ‘The expression “dispute” does not enliven a general advisory jurisdiction whenever parties have different views on what an Act requires. There must be a concrete dispute, such as a money claim.‘ He goes on to say ‘In the absence of a concrete dispute, the questions raised by the Owners (and by Colonial) about the meaning and proper application of section 99A are hypothetical. There is considerable authority that a declaratory power, flexible as it is, does not usually warrant the expression of advisory opinions on hypothetical questions……The pressure upon the tribunal’s already-stretched resources would be intolerable if were to become a bureau for legal advice and advisory decrees.’ [33] In this case it is clear there is a concrete dispute. The park owner has taken a certain approach to the calculation of electricity charges and acted on it. The applicants are challenging its right to do so and are proposing a different basis for the calculation. They have applied to the tribunal with a dispute about their rights and obligations. The learned Member in Emmetlow was using a money claim as an example of a concrete dispute rather than restricting the jurisdiction of the tribunal to those disputes involving a money claim. [34] The tribunal does have jurisdiction over the dispute as framed. 10 [2014] QCAT 127 at [30]-[34] cf Emmetlow Pty Ltd (trading as Colonial Village) v Pomroy and Ors [2013] QCATA 186. -- 9 of 23 -- 10 [35] The need for there to be a ‘dispute’ means that the question for the Tribunal must be a real and not a hypothetical one. And the applicant must have a real interest to raise it. And there must also be an available respondent who has a true interest to oppose the application.11 [36] Ground of appeal (1) therefore fails. Ground of appeal (2): Origin Energy was not the ‘relevant supply authority’ [37] Emmetlow argues that in the case of electricity supply, the relevant supply authority referred to in s 99A is the Government Department which issues a Ready Reckoner that sets out the maximum fees that may be charged by on-suppliers of electricity under the Electricity Act 1994 (Qld). Emmetlow argues that only that Department is capable of being an ‘authority’. Origin Energy was the electricity retailer which supplied electricity to the park owner and it is not properly called an ‘authority’. [38] Thus, it is said, under s 99A the Ready Reckoner gives the fees which may be charged to home owners by the park owner for the supply of electricity. [39] In support of this argument Emmetlow points to the fact that the Electricity Act also restricts the amount which can be charged for electricity resale12 and that Act refers to the supplier of electricity as the ‘relevant retail entity’. [40] The provisions of the Electricity Act restricting the amount which can be charged for electricity resale disappeared on 1 July 2015 when Queensland adopted the National Energy Customer Framework.13 But this does not affect Emmetlow’s argument because the provisions of the Electricity Act even if repealed are relevant to the intention of the legislature in adding s 99A of the 2003 Act on 1 March 2011. [41] Emmetlow also points out the terminology used in the Residential Tenancies and Rooming Accommodation Act 2008 (Qld). Sections 165 and s 167 of that Act restrict charges which may be made for the metered resale of electricity (amongst other things). These sections limit the charge to that which was made by the ‘relevant supply authority’ for the amount of electricity used. In contrast, s 170 which applies to rooming accommodation agreements, restricts charges to that supplied by the ‘supplying entity’ for the utility service provided. [42] Emmetlow’s main argument is that since the two forms of expressions are used and ‘relevant supply authority’ is inappropriate to describe a supplier like Origin Energy, therefore they cannot mean the same thing. Emmetlow 11 A test therefore similar to the power of a court with inherent jurisdiction to grant a declaration: Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 439. 12 Electricity Act s 20J(3)-(4), which applied at the time. 13 The provisions which are relied on by Emmetlow in s 20J of the Electricity Act were removed by s 12 of the Electricity Competition and Protection Legislation Amendment Act 2014. -- 10 of 23 -- 11 says that ‘relevant supply authority’ must mean the Government Department with authority to set the rates in the Ready Reckoner. [43] In its submissions given to the Tribunal below, Emmetlow sets out the history of s 99A. It was added to the 2003 Act by the Manufactured Homes (Residential Parks) Amendment Act 2010 which was passed on 26 October 2010. [44] When considering this ground of appeal it is justified to consider the aim of this amending Act.14 It is notable that the amending Act inserted a new aim in the 2003 Act in s 4: (1) The main object of this Act is to regulate, and promote fair trading practices in, the operation of residential parks— (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. [45] It is also appropriate to consider the heading of a section.15 Here the heading to the section ‘Separate charge by park owner not to be more than cost of supply for use of utility’ is a helpful description of the purpose of the section. [46] Because, as demonstrated by Emmetlow’s arguments in this appeal, s 99A is capable of two possible meanings, it is justifiable in this particular case to consider the effect of the explanatory note for the amending Bill.16 The relevant parts of this are: Policy Objective The policy objective of the Bill is to strengthen fair trading requirements under the Manufactured Homes (Residential Parks) Act 2003 (the Act) while maintaining a clear regulatory framework that encourages the continued growth and viability of the residential parks industry in Queensland. Achievement of the Objectives The Bill achieves the policy objective by making amendments to the Act to address issues (summarised below) identified by manufactured home owners, residential park owners and consumer and industry advocates during the review process. Objects of the Act The main object of the Act is to regulate, and promote fair trading practices in the operation of residential parks. The Bill improves the operation of the Act by providing increased clarity about the Act’s main purpose. 14 Acts Interpretation Act 1954 s 14A(1), the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation. 15 1954 Act, s 14(2), a heading to a section is part of the Act (in modern statutes). 16 Permitted by s 14B(3)(e) of the 1954 Act. -- 11 of 23 -- 12 Specifically, the Bill amends the Act to explicitly state the primary reasons that the Act, as articulated by the main object, is necessary. Those reasons are: (i) to protect home owners from unfair business practices; and (ii) 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. Consistent with the policy objective, the other important objects of the Act continue to be: (i) encouraging the continued growth and viability of the residential parks industry; and (ii) providing a clear regulatory framework to ensure certainty for the residential park industry in planning for future expansion. Miscellaneous and technical amendments Consistent with the policy objective, the Bill contains a number of miscellaneous and technical amendments to improve and clarify the operation of the Act. Specifically, the Bill: (viii) clarifies that park owners must not charge home owners more than the actual cost of providing a utility service (for example, water or electricity) to the home owner where the home owner’s use of the utility service is separately measured and metered; Clause 29 provides a maximum penalty of 20 penalty units if the park owner charges the home owner an amount for the use of a utility that is more than the amount charged by the relevant supply authority when a home owner is required to pay separately for the supply of the utility. The maximum penalty of 20 penalty units in this instance is considered appropriate to provide a disincentive penalty amount higher than the potential profit to be made from charging higher fees for the on-supply of utilities. Clause 29 – Insertion of new s 99A Clause 29 inserts new section 99A which complements section 99 (Separate payment by home owner for use of utility at site). New section 99A provides that where a home owner’s use of a utility is separately measured and charged for (and not paid for as a component of site rent) the park owner must not charge the home owner more than the amount charged by the relevant supply authority. This amendment reflects the Residential Tenancies and Rooming Accommodation Act 2008 which provides that the tenant of a movable dwelling premises must not be required to pay an amount for the outgoings, for a service fee, that is more than the amount charged by the relevant supply authority for the quantity of the thing, or the service or facility, supplied to, or used at, the premises. [47] For the same reason it is justifiable in this particular case to consider the speech made to the Legislative Assembly by the Member when introducing the Bill.17 The relevant passages appear from the second reading of the Bill on 8 June 2010: 17 Permitted by s 14B(3)(f) of the 1954 Act. -- 12 of 23 -- 13 Hon. PJ LAWLOR (Southport—ALP) (Minister for Tourism and Fair Trading) (12.54 pm): I move— This bill proposes important amendments to strengthen provisions of the act that protect the interests of manufactured home owners. Once positioned in a residential park, moving a manufactured home can be an expensive and difficult exercise. After having moved into a park, the opportunity for a homeowner to change providers and get a better deal for themselves is very limited. For this reason, the act needs to provide strong consumer protection. This emphasis will now be made clearer by changing the objects of the act to confirm that protecting the interests of manufactured home owners is its main purpose. [48] The above material makes it clear that the intention of the legislature when making the amendments to the 2003 Act, including the addition of s 99A, was to introduce additional safeguards against home owners being overcharged by park owners who supply utilities to the sites. In so far as the provisions of s 20J of the Electricity Act 1994 applied to the provision of electricity by home owners, there is nothing in s 99A or in any of the extrinsic material to suggest that this was no longer to apply or that it was to be superseded. There is no reason why the two provisions cannot sit side by side. Hence the clear aim of s 99A in respect of metered electricity supplied by park owners to home owners was provide an additional cap of the charges which may be imposed. [49] Emmetlow’s submission in this appeal is necessarily to the contrary. It is that s 99A in respect of electricity supply did not change the status quo, so that only the Electricity Act restriction applies. This argument cannot survive the above analysis. [50] Emmetlow’s submission about the use of the words ‘relevant supply authority’ has some validity, in that since 2006-07 after which time electricity in Queensland was no longer being supplied by the State or by State owned utilities, it would be difficult to describe any retail electricity supplier as an ‘authority’. However the expression is not legally defined so it does not have a definite legal meaning. It could mean a retail supplier of electricity such as Origin Energy. Emmetlow’s contention that instead it means the Government Department which issues a Ready Reckoner for use under s 20J is more difficult to accept because of the words in s 99A(2). These words clearly contemplate that the relevant supply authority is charging an amount for the supply of electricity, not merely providing a Ready Reckoner which may be relied on as an amount which may be charged on resale. [51] In the decision the learned Member says: [46] The most obvious meaning to be given to the words relevant supply authority in section 99A is that it is the organisation that supplies and charges for the service of supplying a quantity of a utility to its customer. Any difficulties with supply, negotiations and relevant rates and charges or disputes about accounts would be addressed to this organisation. There is no reason for the tribunal to distinguish between electricity and other utilities when Parliament has not chosen to do so. -- 13 of 23 -- 14 [47] If it were considered the relevant Government department is the supply authority for electricity, it would also be the relevant supply authority for water, rather than Queensland Urban Utilities, and for gas. Emmetlow has not made that argument in relation to other utilities. [48] Emmetlow receives an invoice form Origin Energy for the supply of electricity. The evidence is that this invoice includes charges for the supply of electricity as well as numerous other charges. However taken as a whole these invoices determine the amount charged for the quantity of the service. These amounts are charges calculated by, in this case, Origin Energy for the supply of electricity. [49] I find Origin Energy is the relevant supply authority for the purpose of the application of section 99A to this dispute as it relates to charges for electricity. [52] For the reasons which we have given we agree with the conclusion as set out above. Ground 2 of the appeal therefore fails. Grounds of appeal (3) and (4): how the charge should be calculated [53] The issues in Grounds 3 and 4 of the appeal all relate to the correct way to calculate the charges to home owners under s 99A. [54] The Tribunal found that s 99A requires the park owner to identify what it is paying for the supply to each site and then it must not charge the home owner any more than that amount.18 The Tribunal found that the Ready Reckoner does not do this and so does not meet the requirements of s 99A.19 Then the Tribunal found that the averaging method used by Mr Pomroy satisfied the requirements of s 99A.20 [55] Emmetlow objects to these findings. Firstly it submits that s 99A does not prohibit a park owner from making a profit on the supply of the utility. It says that one of the reasons for this is that the reference to ‘the amount charged by the relevant supply authority’ in s 99A(2) does not say to whom this charge is addressed, and it is wrong to say that is the amount the park owner has to pay. And in the case of electricity, Emmetlow submits that there was no evidential basis for the Tribunal’s finding that the Ready Reckoner could contain figures which could be higher than the actual cost. Emmetlow invites the Appeal Tribunal to endorse the Ready Reckoner as the appropriate way to calculate the correct charge under s 99A. Finally Emmetlow submits that it is in fact impossible to calculate the amount charged by the electricity retailer for the quantity supplied to the site as required by s 99A. [56] On the first point, there is no need for s 99A to identify the entity to whom the utility bill is addressed. It is the amount charged by the utility supplier for the service supplied to the site which must not be exceeded. Who actually receives the bill is irrelevant. In the case before the learned Member, the 18 Decision, at [62]-[63]. 19 Ibid, at [50]-[63]. 20 Ibid, at [68]. -- 14 of 23 -- 15 bills were received by Emmetlow, so she was right to express the matter in the way she did. [57] It is quite clear from the words of s 99A that the retailer’s charge for the supply must not be exceeded. The home owner must not be charged any more than this amount for the use of the utility. This clearly means that no additional charges can be levied by the park owner for the use of the utility. [58] As for the use of the Ready Reckoner in the case of electricity charges, the learned Member correctly pointed out that it was not the role of the Tribunal to mandate the process to be used to arrive at the ‘amount charged’. She said at [66]: Where there is a disagreement over the calculation the tribunal can decide whether or not the calculation meets the requirement of the legislation at that time. [59] We agree with this approach. In the decision the learned Member said that she was not satisfied that the Ready Reckoner provided a satisfactory way to show the ‘amount charged’ because it was apparent on its face that it was not based on an individual supply transaction. We agree with this. Instead of being based on the actual charge for the quantity of the utility supplied, it gives what is an acceptable amount to the Department for that quantity. [60] For the same reasons as expressed by the learned Member we are unable to endorse the use of the Ready Reckoner as satisfying the requirement of s 99A. [61] As for the averaging method used by Mr Pomroy the learned Member described it in [67] as follows: Mr Pomroy has indicated he has taken the ‘Total Charges’ from the electricity bills provided, added in the Government rebates (which is appropriate because he is not entitled to them) and then divided this amount by the ‘Total Usage’. This calculation results in a cost per kilowatt hour. He has then multiplied this amount by his actual usage. [62] The learned Member accepted that there may be other ways to arrive at the amount charged, and there may be a technical solution to the issue which had not yet been developed, but she was satisfied that the averaging calculation as described did meet the requirements of the legislation.21 [63] Emmetlow submits that s 99A requires that the actual cost of the quantity of the utility supplied at the site to be calculated. The actual cost would be made up of each unit of electricity used at the site, with an adjustment to reflect the effect on the overall bill of the time of day or night when the unit was used, and the cost to park owner of the ‘measures, works and initiatives’ in providing the electricity supply. Emmetlow submits that this 21 Ibid, at [66]-[68]. -- 15 of 23 -- 16 calculation is technically impossible to achieve, therefore the Ready Reckoner should be used because it provides a precise cost per unit. [64] The difficulty with this argument is that s 99A does not require the actual cost of providing the electricity to be calculated. Instead it requires a calculation of the amount charged by the retailer for the quantity of electricity supplied to the home owner. The learned Member accepted Emmetlow’s evidence and submissions that there were a large number of factors that impacted on the unit cost at any given time, and therefore that the cost and complexity of the calculation of actual cost would be manifestly unworkable.22 However the learned Member rightly pointed out, as we do, that this is not what the section requires. [65] When considering the level of sophistication required to make the necessary calculation under s 99A, it is necessary to apply the interpretation that will best achieve the purpose of the statutory provision.23 It cannot have been intended that a technically difficult or impossible calculation was required – this would not achieve the purpose of the provision. Mr Pomroy’s averaging method was workable and achieved the purpose of the provision in that it ensured that overall, home owners would not have to pay the park owner more than the cost of their electricity charged by the retailer. [66] In the case of water charges a similar averaging calculation was in use by Emmetlow and there was no objection to this by Mr Pomroy. His complaint was about the service fee which was added. The Tribunal correctly found that this should not have been added. [67] For the reasons given above grounds 3 and 4 of the appeal fail. Ground of appeal (5)(a) and (b): site agreement allows recovery of service fee [68] The Tribunal found that there was nothing in the site agreement permitting the park owner to recover from the home owner a service fee relating to the administration of the supply of utilities.24 [69] The nature of the charges which Emmetlow says could be charged under the site agreement are infrastructure costs and the service costs of supplying the electricity and water. In respect of the electricity supply the infrastructure can be identified from [49] to [54] of Emmetlow’s submissions to the Tribunal. They are such things as cabling and the distribution equipment in the park installed by Emmetlow and owned by it. It is said that from time to time money is spent on repair and maintenance of these things. The service fees of supplying electricity are the cost of reading the meters from time to time (between home owners’ own readings) and checking that the meter is in good condition. There is also the administrative cost of billing the home owners and receiving their payments. 22 Decision at [69]. 23 Acts Interpretation Act 1954 (Qld) s 14A(1). 24 Decision at [76]-[82]. -- 16 of 23 -- 17 [70] In the case of the water supply, it is said again that there is infrastructure owned by Emmetlow which needs repairs and maintenance from time to time, and there is an administration cost in reading meters and billing. This results in the imposition of a Water Access Fee. [71] Emmetlow submits that it may charge the home owner these infrastructure and service costs relating to the electricity supply under the following special terms of the site agreement: ST3 Utility charges Charges for electricity and gas (a) The Home Owner must pay electricity and gas charges for the Site Area: (i) if charged directly, to the relevant authority or supplier on time; or (ii) if the gas or electricity is supplied by the Park Owner, to the Park owner within 7 days of being billed. … Other charges (d) The Home Owner must pay all other charges and other assessments for the Site Area which are of become payable for the use and occupation of the Site Area. The Home Owner must also pay any charges or assessments which are or become payable for this Site Agreement or any transaction undertaken because of this Site Agreement. [72] The words in the special terms need to be considered in the context of the contract between the parties as a whole. The contract is made up of the site agreement, the special terms in annexure “A” and the Park Rules. Together these documents provide comprehensive and precise terms. The special terms cover 14 pages and contain their own Dictionary and an interpretation section. [73] In these circumstances, if the parties had intended that the cost of the electricity infrastructure and the service costs referred to above were recoverable from the home owner, then in order to match the thoroughness of the drafting of the remainder of the document it would have been expressly referred to. The fact that it is not expressly referred to tends to show that the parties did not intend that it was included. [74] As for special term 3(d) this appears to refer to charges and assessments which the park owner has to pay to third parties for the use and occupation of the site occupied by the home owner. This might apply for example if rates were replaced by another form of occupation tax or if a one-off levy for use and occupation were charged by the State Government. The special term does not read as entitling the park owner to impose additional charges not expressly referred to. [75] Although Emmetlow has not developed submissions with respect to the water supply the same arguments apply. We do not think that infrastructure costs and service costs are recoverable in respect of the water supply under -- 17 of 23 -- 18 special terms 3(a) and 3(d) for the same reasons as we have given in respect of electricity. [76] There is a further difficulty with special term 3(a) in that it deals with electricity charges for the ‘site area’. It is clear from the remainder of the special terms that the expression ‘site area’ is a reference to the site where the home owner resides. So where special term 3(a) refers to the electricity charges for the site area these words are so close to those in s 99 and s 99A of the 2003 Act as unlikely to have any different meaning. It follows that Emmetlow would be prohibited from recovering any infrastructure or service costs under special term 3(a) by the operation of s 99A of the 2003 Act. [77] As for the appeal ground 5(b) Emmetlow submits that the Tribunal was wrong to find that the infrastructure costs and the service costs of reading the electricity or water meters are included in the site rent payable by Mr Pomroy. Emmetlow refers to a table in s 6 of the main body of the site agreement entitled ‘Table of costs for utilities and services’. The table lists those things which are included in the rent and those which are not so included. The Tribunal considered the table when looking at the site agreement to decide whether Emmetlow was entitled to charge for service fees.25 The Tribunal found that: Section 6 only refers to specified utilities or services and does not exclude from the site agreement the infrastructure costs or the service costs of reading electricity or water meters. This means those costs, which to date have been covered by the service fees now being challenged, do form part of the site agreement fee unless otherwise provided for.26 [78] We do not take it that the learned Member was reaching her final conclusion on the issue before her in this paragraph. She was merely saying that s 6 does not say that the infrastructure costs or the service costs are included in the rent, nor does it say that they are excluded from the rent. It was necessary therefore to look at the other provisions to see if they were covered elsewhere. This approach cannot be impugned. [79] For these reasons grounds of appeal 5(a) and 5(b) fail. Ground of appeal (5)(c): there was a contract for recovery of service fee [80] The Tribunal also found that there had been no agreement between the parties outside the site agreement for the payment of service fees for the collection of electricity and water.27 [81] Emmetlow challenges this finding and submits that special term 3(a)(ii) contemplates the making of a separate agreement between the parties where the utility is to be supplied by the park owner, and that such a contract was established over several years when Mr Pomroy paid monthly invoices presented to him by Emmetlow. It was said in submissions to the Tribunal 25 Ibid, at [72]-[86]. 26 Ibid, at [80]. 27 Ibid, at [84]-[86]. -- 18 of 23 -- 19 below28 that Mr Pomroy had arrived in the park on 21 September 2004 and that he had always paid a charge for electricity and had paid Water Access Fees since 1 December 2009. In effect, Emmetlow says that there was a contract which can be implied from these circumstances. [82] Whether or not a contract arises from discussions between the parties is a finding of fact requiring leave to appeal for it to be considered.29 But when the Tribunal is asked to reach an inference on the facts that a contract can be implied from the circumstances this is capable of being a question of law.30 [83] There are three difficulties with Emmetlow’s submissions on this ground of appeal. The first is that, where a party seeks to establish that a contract arose by conduct of the parties (as opposed to arising by their discussions and agreement), then the Court or Tribunal can only infer there was a contractual agreement where it is the only possible hypothesis. Where the conduct is explicable in other ways, such an inference cannot be reached.31 [84] It appears from the decision of the learned Member that she was looking for evidence of a separate agreement and declined to find that payment of service fees in the past created a contractual obligation to pay them in the future. In the absence of any express agreement between the parties, she was clearly right to decline to infer such a contractual obligation as Emmetlow asked. The matter must be viewed objectively. There could be many reasons why a reasonable home owner would pay an invoice containing service fees without objection apart from agreeing to be legally bound to pay them in the future. [85] The second difficulty facing Emmetlow in this argument is that even if it is right to infer from a course of previous payments of service fees that a contract was made between the parties for their continued payment, the terms of such a contract would not be that this obligation would continue forever. Viewed objectively, reasonable parties would not have agreed that the obligation to continue to pay service fees could survive a statutory prohibition for their levy as happened when s 99A was brought into effect. [86] There is also another difficulty with this ground of appeal. Special term 15 states that the site agreement constitutes the entire agreement between the parties. So strictly there is no room for a separate implied agreement to arise. Any such agreement would need to be achieved by a variation of the site agreement and would have to be in writing and signed by the parties.32 [87] For these reasons we reject this ground of appeal. 28 Appellant’s submissions at [213]-[217]. 29 QCAT Act s 142(3)(b). 30 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355. 31 This is the effect of Brogden v Metropolitan Railway Co (1877) 2 App Cas 666, as explained by Jackson J in Mackay Sugar Ltd v Sugar Australia Pty Ltd [2013] QSC 233 at [46]. 32 Otherwise any such agreement is void: 2003 Act, s 22(2). -- 19 of 23 -- 20 Additional ground of appeal: estoppel [88] Emmetlow also says in its submissions that Mr Pomroy is estopped from denying the common assumption between them that the fees were payable. Emmetlow relies on the historical payments made by Mr Pomroy and also its change of position by: commissioning, building, maintaining, repairing and improving the infrastructure to deliver electricity to (Mr Pomroy) and carrying out Meter Provider/Data Agent services for the benefit of (Mr Pomroy) for a period of nearly 7 years. [89] The difficulty here is that estoppel is raised for the first time in this appeal. A party is generally bound by the conduct of its case at first instance and should not, except in the most exceptional circumstances, be permitted to raise a new argument not raised in the hearing below. It is necessary to consider this in the light of the strong public interest in the finality of litigation.33 [90] The estoppel argument is not suitable for decision without evidence and submissions directed towards it. In particular, there would need to be evidence of representations made by Mr Pomroy, or his acquiescence in a particular state of affairs, and of the understanding of Emmetlow’s officers and of its reliance upon those things. Then submissions would be required as to whether it would be unconscionable to allow Mr Pomroy to retract from the position he previously took, if he did take such a position. Particular care would be needed when considering such evidence because of the changes on 1 March 2011, to see whether any estoppel which may have arisen by that time could survive the statutory prohibition then added in s 99A of the 2003 Act. [91] In his evidence, Mr Pomroy says that after the introduction of s 99A he was quick to challenge the Water Access Fees and the electricity service fee which he had been paying. He raised this in correspondence with Emmetlow. When he did not get what he regarded as a satisfactory response, on 29 July 2011 he applied to QCAT for a declaration as to the effect of s 99A. [92] The application to QCAT on 29 July 2011 is a matter of record and is not open to dispute. It is clear from the fact that proceedings were commenced so soon after the addition of s 99A that any submission that an estoppel survived beyond that time is unlikely to succeed. Since the learned Member was not asked to determine this question there are no factual findings which can be relied on in this appeal and it is impossible to say that she was in error. We decline to hear this additional ground of appeal. Ground of appeal (6): the amount of the overcharge [93] In this ground of appeal Emmetlow says that not only did the Tribunal make an error in principle in deciding that there had been an overcharge, but also 33 Keswick Developments Pty Ltd v Keswick Island Pty Ltd [2011] QCA 379 at [7]. -- 20 of 23 -- 21 that the amount was miscalculated. It is said that it is unclear how the amount of $1,206.91 was arrived at. [94] We have dealt with the question of principle in the other grounds of appeal. As for the amount of the overcharge, in her decision the learned Member explained why she accepted Mr Pomroy’s figures for the overcharge. As discussed under ground of appeal (3) and (4) above, she found that the averaging method used by Mr Pomroy satisfied the requirements of s 99A, and whilst Emmetlow challenged Mr Pomroy’s calculation as being an estimate only it did not provide an alternative calculation. In the circumstances, the learned Member accepted Mr Pomroy’s calculation of the refund due.34 [95] It is true that how the figure of $1,206.91 was arrived at is not recited in the decision, but this was canvassed in detail in the hearing itself as can be seen from the transcript obtained by Emmetlow and filed in the Tribunal.35 The starting point was Mr Pomroy’s spreadsheet in Annexure G, and once the claims for gas were deducted (which claim Mr Pomroy withdrew) then the final figure was reached. When the learned Member went through these figures with Mr Pomroy, she checked with Emmetlow’s representative, Ms Thauer that she was following the calculation. Ms Thauer was able to make comments upon the calculation in her final submissions but did not do so. [96] Earlier during the evidence given on behalf of Emmetlow by Ms Thauer, the learned Member explained that she was unable to make any calculation as to what should have been charged without Emmetlow’s raw data and asked Ms Thauer if she wished to provide this, but Ms Thauer was quite clear that she did not wish to do so.36 [97] In the circumstances the learned Member was entitled to accept Mr Pomroy’s figures as adjusted, and no deficiency can be found in the way in which the hearing was handled nor in the way in which the decision on this matter was expressed. [98] For these reasons ground (6) of the appeal fails. Ground of appeal (7): against the costs order of $150.00 filing fee [99] In this ground of appeal Emmetlow says that there were no submissions as to costs and no reasons given for awarding them. And that a costs order was not justified when considering the statutory provisions which apply. [100] Emmetlow refers to s 100 of the QCAT Act which states the usual starting point for the Tribunal on the question of costs to be that each party must bear their own costs. Emmetlow then refers to s 102 which provides that costs may be awarded if it is in the interests of justice to do so and which sets out a number of things to which the Tribunal may have regard when 34 Decision, at [98]. 35 Transcript of Proceedings, p 1-58 to 1-60. 36 Ibid, p 1-47. -- 21 of 23 -- 22 deciding whether to award costs under that section. Emmetlow then addresses those things. [101] Filing fees in cases which are not minor civil disputes are dealt with under different provisions however. Section 105 of the QCAT Act permits rules to be made authorising the Tribunal to award costs in other circumstances. Under r 85 of the QCAT Rules, where the Tribunal makes an order against a respondent in a claim which is not a minor civil dispute (and this claim was not a minor civil dispute), then the Tribunal can order the respondent to pay the applicant’s filing fee. This provision is separate from s 100 and s 102 and so does not come under the principles set out in those sections nor the case law which considers those sections. [102] In an appeal against a costs order leave to appeal is required.37 Were it not for that provision, an appeal based on inadequate reasons would be an appeal on a point of law where leave would not be required.38 [103] Emmetlow was able to make submissions as to costs if it had wished to do so. At hearing Mr Pomroy addressed the Tribunal first and asked for his filing fee of $150.00 if he was successful.39 Emmetlow’s representative then addressed the Tribunal and therefore could have taken the opportunity to resist the costs order. [104] It is true that the Tribunal gave no reasons for making the costs order. In this case are such reasons required where the costs are limited to the filing fee? [105] The normal practice of the Tribunal where a request is made by a successful applicant, is to award the filing fee. Usually this is done without giving any reason in a case where it is obvious that the applicant has been successful, because it would clearly be unfair to deprive the applicant of the filing fee in such circumstances. It also accords with what has been said by the Appeal Tribunal that adequacy of reasons given by the Tribunal need to be considered in light of the simpler, expedited procedures the Tribunal is obliged to adopt under the QCAT Act.40 [106] In the circumstances we find no error in the way in which the Tribunal dealt with the costs issue nor in the way the decision about this was expressed. Leave to appeal will usually be granted only where an appeal is necessary to correct a substantial injustice to the applicant, and there is a reasonable argument that there is an error to be corrected.41 [107] For these reasons we decline to give leave to appeal on this issue. [108] Emmetlow also makes the point that in the Tribunal’s order the total of the amount awarded and the filing fee of $150.00 is some 82 cents incorrect. 37 QCAT Act s 142(3)(a)(iii). 38 Better Homes Queensland Pty Limited v O’Reilly & Anor [2012] QCATA 37 at [22]. 39 Transcript of Proceedings, p 1-60. 40 Ricchetti v Lanbuilt Pty Ltd [2011] QCATA 266 at [3]. 41 Pickering v McArthur [2005] QCA 294 at [3]. -- 22 of 23 -- 23 This is an accidental slip or omission which will be corrected by the Tribunal under s 135 of the QCAT Act. Ground of appeal (8) and (9) [109] These are sweeping up grounds and have been dealt with above. [110] The appeal fails and we decline to give leave to appeal where this is required. -- 23 of 23 --