Deception Bay Holdings Pty Ltd t/a Torquay Waters v Freeman [2011] QCATA 9

CITATION: Deception Bay Holdings Pty Ltd t/a Torquay Waters v Freeman [2011] QCATA 9 PARTIES: Deception Bay Holdings Pty Ltd t/a Torquay Waters v Kevin Freeman APPLICATION NUMBER: APL208-10 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Richard Oliver, Senior Member DELIVERED ON: 21 January 2011 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal is refused CATCHWORDS : Minor Civil Dispute; where application for termination of site tenancy commenced with the incorrect form; whether QCAT has jurisdiction to make a termination order pursuant to Residential Tenancy and Rooming Accommodation Act; where jurisdiction conferred on QCAT under the Manufactured Homes (Residential Homes) Act; where the applicant failed to comply with the termination provisions of the Manufactured Homes (Residential Parks) Act. Queensland Civil and Administrative Tribunal Act 2009 section 143(3) Residential Tenancy and Rooming Accommodation Act section 37 considered; Manufactured Homes (Residential Parks) Act section 38 considered. APPEARANCES and REPRESENTATION (if any): This matter was heard on the papers, pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). -- 1 of 4 -- 2 REASONS FOR DECISION [1] On 23 July 2010 the applicant filed an Application for a Minor Civil Dispute – residential tenancy dispute 1 , in the Magistrates Court Hervey Bay seeking an order for the termination of a Manufactured Homes Site Agreement. 2 Annexed to the application is the “Site Agreement” setting out the details of the agreement between Mr Freeman and Deception Bay Holdings Pty Ltd. [2] The grounds alleged for the termination related to Mr Freeman’s conduct whilst an occupant of the Park. The Site Agreement itself provides that the park owner can apply to the Commercial Consumer Tribunal (now QCAT) for termination on certain grounds, which include if the “home owner, tenant or guest interferes with the quiet enjoyment of other residents”. 3 [3] It being apparent to the learned Magistrate in Hervey Bay that this was a manufactured homes matter, the application was adjourned to QCAT in Brisbane for determination. [4] Clearly QCAT has jurisdiction under the Manufactured Homes (Residential Parks) Act 2003 (“the Act”) to make an order for the termination of a site agreement on the grounds set out in section 38 of that Act. [5] Because this dispute does involve a manufactured home, QCAT does not have jurisdiction to make a termination order pursuant to Residential Tenancy and Rooming Accommodation Act 2008 (“RTRA Act”) because, pursuant to section 37, that Act does not apply to a site agreement to which the Act applies. [6] In this matter the applicant commenced the application for a termination order using the wrong form. The correct form is From 30. When the application came on for hearing in the Tribunal on 13 August 2010, the learned member, as he was entitled to do, proceeded to hear the application as if it were commenced under the Act 4 . His decision was to dismiss the application, essentially for non compliance with section 38 of the Act. [7] On 15 September 2010 the applicant filed an application for leave to appeal and appeal. Leave is necessary. 5 The applicant relies on a Notice to Remedy Breach issued to the respondent in 2007 and has produced a copy of that Notice with the appeal documents, although it was not available at the hearing. 1 QCAT Form 2 2 Part D of the Application. 3 Section 2 of the Site Agreement. 4 As evident from the recording of the hearing. 5 QCAT Act section 143(3) -- 2 of 4 -- 3 [8] A termination order can be made pursuant to section 38 of the Act on certain grounds. The ground relied on above is contained in subsection (1) and provides that: (e) the home owner, or the home owner’s tenant or guest— (i) repeatedly interferes, or has repeatedly interfered, with the quiet enjoyment of the residential park by the park’s residents; and (ii) continues, or has continued, the behaviour mentioned in subparagraph (i) after the park owner gives the home owner a notice, in the approved form, requiring the home owner to stop the behaviour [9] The approved form is a Form 6 Notice to Remedy Breach. During the hearing the applicant relied on a Notice dated 22 May 2007 but was unable to produce a copy of that Notice. Furthermore, the evidence before the learned adjudicator was that subsequent to the 2007 Notice issuing, a mediation took place and as a result an agreement was reached in which Mr Freeman acknowledged his conduct and undertook to be of good behaviour. This agreement was also as a result of proceedings brought in the Magistrates Court at Hervey Bay by Park residents. [10] The conduct complained of in the originating application occurred on 10 April 2010. 6 Subsequent to that incident Mr Rowan issued a further Notice to Mr Freeman as required by section 38(1)(e)(ii) of the Act. That Notice is dated 11 April 2010 and mailed on to Mr Freeman on 16 April 2010. There is no reason to believe that Mr Freeman did not receive that Notice, despite his denial. It could be argued that the Notice was deficient in that it does not state with any particularity the conduct complained of although it does make reference to the specific term/condition of the agreement that had been breached. In this regard I accept the submissions of the respondent 7 It is also worth noting that the Notice is a new form it’s effective date being 1 July 2009. [11] As the submissions of the respondent contend, there was no conduct alleged in the application subsequent to the issuing of the Notice relied upon to warrant a termination order. A termination order can only be made pursuant to section 38 if the conduct continues after the giving of the “notice in the approved form”. Therefore, between the date of the issuing of the Notice and the hearing, it seems, Mr Freeman has complied with the Notice. On this basis no error is demonstrated on the part of the leaned member. [12] The grounds in the application for leave to appeal rely on comments made by the learned member in respect of the 2007 Notice. The applicant has listened to the recording of the hearing and recites the members comment as follows: 6 Statement of Blair Rowan26 May 2010 7 Respondents written submissions paragraphs 12 - 17 -- 3 of 4 -- 4 “what troubles me is the lack of documentary evidence, being the breach notices issued in 2007, if they were here I would grant you your orders”. [13] This comment is also relied upon in the submissions filed in support of the application. The difficulty is, as I see it, even if the 2007 Notice was produced it would not be sufficient to satisfy compliance with section 38(1)(e) because firstly, subsequent to the issuing the Notice there was a mediated outcome, and secondly there had been a change in the approved form. Also the extended period between the issuing of the 2007 Notice and the conduct complained of would militate against reliance on the form for the purposes of the termination order. It is a serious matter to evict a person from their residence and that is why the Notice to Remedy Breach is specifically provided for in the Act and also in the RTRA Act. [14] My sole duty is to determine whether there is an error in the primary decision. It is not my task to decide where the truth lay as between the competing versions given by the parties. 8 [15] The question whether or not leave to appeal should be granted is usually addressed according to established principles: Is there a reasonably arguable case of error in the primary decision? 9 Is there a reasonable prospect that the applicant will obtain substantive relief? 10 Is leave necessary to correct a substantial injustice to the applicant caused by some error? 11 Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?12 [16] Here, no error on the part of the learned member is demonstrated. To the contrary, on not being satisfied that Mr Freeman had continued to engage in objectionable behaviour subsequent to 10 April 2010 or the issuing of the Notice, he had no alternative but to dismiss the application. Nor, for these reasons has there been a substantial injustice. [17] As no error of law can be identified on the part of the learned member leave to appeal must be refused 8 Fox v Percy [2003] HCA 22 at [32] per Gleeson CJ, Gummow and Kirby JJ. 9 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 10 Cachia v Grech [2009] NSWCA 232 at [13]. 11 QUYD Pty Ltd v Marvass Pty Ltd (supra). 12 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580. -- 4 of 4 --