Emmetlow Pty Ltd v Valentine [2011] QCAT 562

CITATION: Emmetlow Pty Ltd v Valentine [2011] QCAT 562 PARTIES: Emmetlow Pty Ltd v Mr Trevor Valentine APPLICATION NUMBER: OCL163-10 MATTER TYPE: Other civil dispute matters HEARING DATE: 30 August 2011 HEARD AT: Brisbane DECISION OF: Mr J Allen, Member DELIVERED ON: 14 November 2011 DELIVERED AT: Brisbane ORDERS MADE: (1) The site rent increase effective as of 13 December 2010 is reduced from $197.95 per week to $186.50 per week, inclusive of GST and water. (2) Emmetlow Pty Ltd will refund to the Applicants any overpayment of site rent which has occurred in the period from 13 December 2010 until today’s date by 4.00pm on 30 November 2011. CATCHWORDS: Market rent review – manufactured homes Manufactured Homes (Residential Parks) Act 2003, ss 69, 70 APPEARANCES and REPRESENTATION (if any): APPLICANT: Mrs Marika Thauer, Park Manager RESPONDENT: Mr Valentine was represented by Mr Alan Colgrave REASONS FOR DECISION [1] Emmetlow Pty Ltd is the owner of Colonial Village a mixed-use tourist park and manufactured home site at Taigum. Mr Valentine resides at Colonial Village under a site agreement subject to the Manufactured Homes (Residential Parks) Act 2003. Mr Valentine had originally taken up residence at Colonial Village under a movable dwelling tenancies agreement as his accommodation was originally considered to be a -- 1 of 3 -- 2 caravan. Following the introduction of the Manufactured Homes Act a decision was made by the former Commercial and Consumer Tribunal1, that Mr Valentine resided in a manufactured home and that his movable dwelling tenancy agreement constituted a site agreement for the purposes of that Act. [2] That decision also determined that as the site agreement did not set out how the amount of an increase in site would be calculated section 69 of the Act did not apply and any increase in site rent would require notification under section 71 of the Act. Mr Valentine was provided with Notice of Increase in site rent under section 71 which was dated 13 October 2011. His site rent was to increase from $165.50 per week to $197.95 per week as from 13 December 2010 that is an increase of $32.45 per week. A prompt payment discount of $5.00 per week also applies. [3] Mr Valentine did not agree to the site rent increase and Emmetlow Pty Ltd have made application to the Tribunal for an order about the proposed increase2. In determining the application the Tribunal may have regard to the factors set out in section 70 of the Act3. The party’s material and their submissions at the hearing have been framed in accordance with that section. [4] Mr Valentine has made a counter application in regard to whether or not he should be charged for water either as part of his site rent or separately and whether a Utility Cost Notice4 should be provided to him in regard to him being separately charged for water. [5] The Tribunal notes that this application was heard with two other applications in regard to site rent increases at Colonial Village. The outcome of those applications was that the site rent exclusive of water charges at Colonial Village was $183.75 per week. The Tribunal has considered the submissions made by Mr Colgrave on behalf of Mr Valentine and notes the budget provided which shows that Mr Valentine would still have surplus income if his site rent was increased to $183.75. The Tribunal will adopt $183.75 as the site rent applicable to Mr Valentine if his site rent were exclusive of water charges. [6] Unlike other site agreements Mr Valentine’s provides for site rent to be inclusive of water charges. Mr Colgrave on behalf of Mr Valentine has stated that Mr Valentine will pay for water charges once he has received a section 73 utility cost notice under the Act. Emmetlow Pty Ltd has increased Mr Valentine’s site rent to an amount which it now says is inclusive of water that is by charging him an additional $5.00 per week. [7] The Commercial and Consumer Tribunal determined that as at 24 August 2006 the utility cost of water was $1.32 per week5. Mrs Thauer provided material with her statement which showed that the price of water has 1 Valentine v Emmetlow Pty Ltd [2008] CCT MH002-08. 2 Section 71(7) of the Manufactured Homes (Residential Parks) Act 2003. 3 Section 71(8) of the Manufactured Homes (Residential Parks) Act 2003. 4 Section 73 of the Manufactured Homes (Residential Parks) Act 2003. 5 Residents of Colonial Village v Emmetlow [2007] QCCTMH 22. -- 2 of 3 -- 3 increased considerably since that time, by as much as 100%6. She did not though explain how the amount of $5.00 was calculated and that amount is considerably in excess of 100% of $1.32. [8] When determining the site rent increase the Tribunal may consider the factors in section 70 of the Act7. In particular here the question of whether the increase is fair and equitable requires consideration. Mr Valentine has for some years paid the same rent as other home owners without having to pay for water. He states he will pay for water subject to a utility cost notice. But if he is already paying rent at a water exclusive rate that will change the fairness of the situation. Before Mr Valentine is subject to utility cost notice he should be paying his site rent inclusive of water. This requires that he pay site rent at a higher rate than other residents. [9] The Tribunal does not consider an amount of $5.00 per week for water is justified for Mr Valentine on the basis of the material from Emmetlow Pty Ltd. The Tribunal will rely on the finding of the Commercial and Consumer Tribunal adjusted for increases in water prices as mentioned above. The additional site rent for water usage is then $2.62. When added to the site rent amount of $183.75 from the other hearing as mentioned above this produces a site rent of $186.50 per week with rounding. [10] Mr Valentine’s site rent per week inclusive of water is determined to $186.50. Orders [11] The Tribunal makes the following orders: (1) The site rent increase effective as of 13 December 2010 is reduced from $197.95 per week to $186.50 per week, inclusive of GST and water. (2) Emmetlow Pty Ltd will refund to Mr Valentine any overpayment of site rent which has occurred in the period from 13 December 2010 until today’s date by 4.00pm on 30 November 2011. 6 Exhibit 1 annexure “EE”. 7 Section 71(8) of the Manufactured Homes (Residential Parks) Act 2003. -- 3 of 3 --