Eastwell & Ors v Ingenia Communities Group, Ingenia Communities Holdings Limited [2026] QCAT 141

[2] This matter, in part, relates to a dispute about site rent following a market review. At the time of the market review there were 260 sites at this residential park but the market review only applied to 67 sites. Home owners enter into individual site agreements with the park owner[8] in respect of the land on which their home is situated and their use of the common areas and communal facilities. The site agreement provides for the home owner to pay site rent and for how the rent is to be reviewed. The Act also provides for how rent is to be varied. As is not unusual, the park has been developed in stages and site agreements entered into at various times have some differences in particular as to CPI increases.

Queensland Civil and Administrative Tribunal|2026-03-18

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

[1] Ms Eastwell and Mr Leyman are the current Lead Applicants in this matter.[1] The Lead Applicants and the other Applicants claim to be home owners[2] in a residential park[3] governed by the Manufactured Homes (Residential Parks) Act 2003 (Qld) ('the Act'). Home owners own manufactured homes,[4] which are positioned on sites[5] in the residential park.[6] The park owner[7] owns the land, common areas and communal facilities built on the land.

[3] In addition to the market review other disputes have arisen between the home owners and the park owner.

[4] The Applicants are self-represented. There have been some changes to the persons tasked with being Lead Applicants during the proceedings. The Applicants have had some difficulty in complying with directions made, in particular clarifying which home owners wish to be joined as applicants and setting out the matters remaining in dispute, the legal basis of their claims and the evidence upon which they wish to rely. The park owner is also self-represented. Relatively limited evidence has been filed in this matter given the number of Applicants and purported applicants.

[5] This matter was directed to be determined on the papers.[9] The delay in deciding this matter since the last documents were filed[10] is regrettable and, at least in part, relates to resourcing issues and the number of Applicants or purported applicants.

[6] The evidence before me is that the park owner gave home owners of 67 sites a Form 12 General Increase Notice ('Notices') on 10 December 2021 advising an increase in rent based upon a market review. All Notices in evidence sought to increase the site rent from 15 January 2022 ('General Increase Day'). At Annexure A I summarise the Notices and related documents in evidence.

[7] A Form 11 Dispute Negotiation Notice dated 5 January 2022 ('the Dispute Notice') was given on behalf of some named home owners setting out 10 matters in dispute.[11] There is no evidence before me that any other home owners issued any other dispute negotiation notice. Section 70(2) of the Act requires[12] a home owner to give such a notice within 28 days after receiving a general increase notice for a proposed increase in site rent where the home owner disputes it on the basis it is excessive.

[8] On 21 February 2022, some home owners met to discuss the Dispute Notice issues but there was no resolution. There is no evidence before me that any home owners other than those named in the Dispute Notice attended that discussion.

[9] The evidence is that an Application for Mediation on behalf of some named home owners was filed[13] and a mediation held 29 August 2022. There is no evidence before me that any home owners other than those named in the Application for Mediation attended that mediation.

[10] An Application for a Tribunal Hearing ('Application') purportedly on behalf of some named home owners was filed setting out seven matters in dispute.[14] The Application was brought pursuant to rule 10 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld). Rule 10 sets out requirements for making an application where there is no approved form, including that it must be in writing, must be signed by the applicant, and must contain the applicant's name and contact details. Only three Applicants signed the Application and became applicants, i.e. Jennifer Eastwell, Anne Nystrom, and Ray Dyer. Each of them complied with the requirements of section 116(3) of the Act and are eligible to apply to the Tribunal for an order under section 70(4), where they received a general increase notice and they dispute it on the basis it is excessive, or to apply for an order under section 117 in relation to other disputes.

[11] The evidence is that Ms Eastwell received a Notice. Her application is considered under section 70 in respect of the market review increase and section 117 of the Act in respect of disputes other than site rent increases being excessive. There is no evidence before me that Ms Nystrom and Mr Dyer received a general increase notice, which they dispute on the basis it is excessive. Their applications can only be considered as being for orders under section 117 of the Act in respect of disputes other than site rent increases being excessive.

[12] Section 117 of the Act provides:

If a party to a residential park dispute applies to the tribunal for an order in relation to the dispute, the tribunal may make the following orders -

(a) an order the tribunal is authorised to make in relation to the application under another provision of this Act;

(b) any other order the tribunal considers appropriate to resolve the dispute.

[13] By directions, the Tribunal sought to clarify whether the other named home owners who did not sign the Application sought to be joined and authorised the lead Applicants to act for them, and whether any other home owners sought to be joined or remain as an applicant and authorised the new lead Applicants to act for them.[15] Some home owners were joined.[16] Many of the home owners named in the Application did not comply with the directions and were not formally joined.

[14] At Annexure B I summarise the evidence before me about which home owners participated in the legislatively prescribed pre-proceeding steps and evidence about their status as Applicants. Site numbers are listed in the order set out in the Valuation[17] and for other non-market review applicants in site number order. I have had regard to various handwritten schedules filed. There are some home owners who have signed such schedules but their names and the site numbers are eligible. Directions issued on 12 April 2024 attaching a typed schedule to clarify home owners wishing to be joined or remain as applicants does not appear to have been complied with. For these reasons there may be home owners who intended to seek to be joined, who I have not included in Annexure B.

[15] The Applicants were directed to clarify the remaining issues in dispute.[18] The Applicants bear the onus of satisfying me of their contentions on the balance of probabilities. They say that the park owner failed to comply with the Act and the Applicants' site agreements and that amounts paid contrary to the Act and the site agreements should be refunded.

[16] As I understand it the following are the issues for determination:

(a) whether the site rent increases proposed by the park owner in the General Increase Notices dated 9 December 2021 pursuant to a market review ('Notices') are excessive?

(b) whether the park owner is permitted to charge GST on site rent where the site agreement states there is no GST payable?

(c) whether the park owner is permitted to charge site rent increases calculated by reference to different CPI formulae?

(d) whether site rent CPI increases are excessive because CPI increases are applied to GST-inclusive site rent to which GST is then applied?

[17] In addition to these matters there are issues as to who has been joined as an Applicant, whether some Applicants should be removed, whether any other home owners should be formally joined and the impact, if any, of amendments to the Act.

[18] The Tribunal has observed that in proceedings of this nature between commencement and final determination, some home owners sell and move out of the relevant park and some may pass away. The Tribunal has previously found, and I agree, that applicants who have sold their home can no longer be an applicant and where a named applicant has died their legal personal representative continues as an applicant until the home is sold.[19]

[19] On the evidence before me, summarised in Annexure B, at least some of the home owners named in the Application were home owners when the Dispute Notice was given, when the dispute was referred to mediation, when the Application was filed and at the time that the last submissions were filed.

[20] Although many of them did not fully comply with directions, I am satisfied that each home owner named in the Application should be regarded as a being a proper applicant and formally joined.[20] The evidence is that they complied with the legislatively prescribed pre-proceeding alternative dispute resolution steps and signed a schedule essentially indicating that they consented to being joined. They are identified in Annexure B. The Tribunal may make an order joining a person as a party to a proceeding on its own initiative.[21] To the extent necessary I waive their noncompliance with directions.[22] The park owner has not raised the issue of who is a proper applicant. I am satisfied that waiving noncompliance would not cause prejudice or detriment to the park owner and is consistent with the objects of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) ('QCAT Act').[23]

[21] To the extent that some of those people are no longer home owners because they no longer own a home in the park, their interests are no longer affected by the proceedings and they should be removed from the list of applicants.[24] The Lead Applicants have from time to time provided information, which has resulted in the removal of some of the Applicants. Since the last submissions there may be more.

What are the consequences of non-compliance with the pre-proceeding alternative dispute resolution steps?

[22] I find that home owners, who have failed to demonstrate that they complied with the pre-proceeding alternative dispute resolution steps, should be removed as applicants because there is no evidence that they are eligible to apply to the Tribunal for the orders sought.

[23] Annexure B sets out evidence relating to compliance with the pre-proceeding alternative dispute resolution steps.

[24] Some home owners who were joined earlier in the proceeding, have not filed evidence supporting their right to bring and maintain an application. There is no evidence before me that they have complied with the pre-proceeding alternative dispute resolution steps. Although the park owner has not expressly raised their standing as an issue in the proceedings, I am required to satisfy myself that an application is properly brought and that I have power to make orders in respect of them.

[25] I find that where there is no evidence that home owners have complied with section 116(3) of the Act they are to be removed as applicants. The Tribunal may make an order that a party be removed from a proceeding on its own initiative.[25]

[26] In relation to some sites there is insufficient evidence before me to establish that they intended to be regarded as applicants. To the extent that there is no evidence of compliance with the pre-proceeding alternative dispute resolution steps supporting their right to bring and maintain an application I find that if they were regarded as an applicant they should be removed.

[27] The Tribunal has reasonably recently considered the pathways to the Tribunal and the operation of section 141 of the Act.[26] One pathway is through the pre-proceeding alternative dispute resolution steps.

(3) A party to a residential park dispute (other than a dispute mentioned in section 14A(1)(b)) may apply to the tribunal only if -

(a) the dispute has been referred for mediation under section 108; and

(b) 1 of the following applies -

(i) the parties to the dispute can not reach a mediation agreement;

(ii) a party to the dispute does not attend, or withdraws from, the mediation conference for the dispute;

(iii) the dispute is not settled within 4 months after the dispute is referred for mediation;

(iv) the parties reach a mediation agreement and the party making the application claims the other party has not complied with the agreement -

(A) within the time stated in the agreement; or

(B) if no time is stated, within 2 months after the agreement is signed.

[29] Disputes mentioned in section 14A(1)(b) relate to a dispute between an assignor and a park owner about the park owner's failure or refusal to consent to the assignment of the assignor's interest in a site agreement to an assignee, which is not relevant to these proceedings.

[30] This pathway requires the parties to have applied to have the dispute referred to mediation[27] which in turn requires the parties to have attempted to resolve the dispute by negotiation under section 70(2), where the dispute is that the proposed increase in a general increase notice is disputed as excessive, or for other residential park disputes under section 107, and the dispute has not been resolved. The language in section 108(2) and section 116(3) uses the phrase 'only if'.

[31] The second pathway under the Act is if the proceedings are exempt from the operation of section 116(3).[28] If an applicant applies under an exempt provision, they may file an Application for a Tribunal hearing without taking the pre-proceeding steps required by section 116(3). Section 116(5) sets out the exempt provisions, none of which are relevant to these proceedings:

(a) sections 38(1), 39(1), 52(3), 53(5), 55(2), 62ZB, 62ZC, 62ZD, which all relate to applications by the park owner for certain orders;

(b) section 40B(2), which relates to an application to extend time where a termination order has been made;

(c) section 62Z, which relates to an application by a home owner for a declaration that the home is an eligible home; and

(d) section 94(4), which relates to an application by a park owner or park manager for certain orders.

(1) This section applies if a home owner who is a party to a residential park dispute (the individual dispute) may do any of the following things in relation to the dispute -

(a) carry out negotiations under section 107;

(b) take part in mediation;

(c) apply to the tribunal for an order.

(2) The members of a group of home owners for the residential park may do the thing jointly in relation to a residential park dispute arising out of facts or circumstances that are the same as, or similar to, the facts or circumstances of the individual dispute.

[33] Although steps may be taken collectively this does not detract from the fact that they are individual disputes and are required to be determined having regard to the evidence relevant to each home owner.

[34] In Nicholson v Hometown Australia Sandstone Pty Ltd ('Nicholson') the learned Senior Member:

(a) found, and I agree, that those homeowners who had not participated in the legislatively prescribed alternative dispute resolution were not entitled to commence the proceeding, which was not an exempt proceeding. He dismissed that part of the proceedings brought by those parties pursuant to section 47 of the QCAT Act on the basis that the claims were misconceived or lacking in substance. He considered, and I agree, that the word 'only' in section 116(3) of the Act must be given meaning and that it 'evinces a clear legislative intent to constrain the circumstances in which a party to a residential park dispute may apply to the Tribunal in circumstances where such application is not made pursuant to an exempt provision.'[29]

(b) considered the operation of section 141 of the Act and found, and I agree, that 'while the section permits home owners to act jointly, there is nothing in the section that either expressly or impliedly operates to waive compliance by an applicant with the substantive requirements of s 116(3)'.

[35] In Vandreike (lead applicant) v Serenitas Community Holdings Pty Ltd ATF Serenitas Community Trust & Anor[30] ('Vandreike') the learned Member found that certain home owners should be regarded as proper applicants because, but for operational matters in the registry, she would have exercised the discretion in section 42 of the QCAT Act to join them, even though they 'did not participate (and could not have participated) in the dispute resolution processes prescribed by section 116(3)'.[31] In that case the learned Member was persuaded that she should exercise the discretion because the people who became home owners after the dispute negotiation notice was given were just as unhappy about charges invoiced for daily supply of electricity and for water, wastewater and waste management utility services as the people who were home owners before the dispute negotiation notice was given.[32] Essentially she found that their interests may be affected by the proceeding.

(1) The tribunal may make an order joining a person as a party to a proceeding if the tribunal considers that -

(a) the person should be bound by or have the benefit of a decision of the tribunal in the proceeding; or

(b) the person's interests may be affected by the proceeding; or

(c) for another reason, it is desirable that the person be joined as a party to the proceeding.

[37] I have considered the reasons in Vandreike[33] carefully. With respect to the learned Member, I prefer the reasoning in Nicholson.[34] Given the clear mandatory nature of the provisions in the Act, in section 70(2), section 108(2) and section 116(3), I am not satisfied that the provisions of the QCAT Act can modify the provisions of the enabling Act, which confers on the Tribunal jurisdiction to hear and determine an individual home owner's application in limited circumstances. If the legislature intended the Tribunal to have a broader jurisdiction it could have made that clearer.

[38] A large number of home owners were joined as Applicants by directions made 21 July 2023. In respect of many of them, no evidence has been filed which demonstrates that they participated in the pre-proceeding dispute resolution processes commenced by the Dispute Notice or a different pre-proceeding dispute resolution process. I find that they should be removed as applicants. I identify those home owners in Annexure B.

Does the Manufactured Homes (Residential Parks) Amendment Act 2024 (Qld) ('Amendment Act') affect this proceeding?

[39] I find that the Amendment Act does not apply to the site rent increases proposed in the Notices. The Amendment Act will affect the way site rent is reviewed on and from the commencement date.

[40] The Applicants and the park owner did not make any detailed submissions as to whether the Amendment Act affected this proceeding, although the Applicants refer to future impacts.

[41] The Notices were given on or about 10 December 2021 and the dispute commenced by the giving of the Dispute Notice dated 5 January 2022.

[42] I find that the version of the Act at that time applies. This is the reprint current from 4 December 2020 to 30 April 2022 ('2020 Reprint').

[43] The Amendment Act commenced on 6 June 2024, which variously provides:

(a) despite any basis stated in the site agreement for increasing the site rent, the park owner must not increase the site rent by more than the greater of the CPI increase or 3.5%.[35]

(b) the CPI used is to be the Weighted Average of Eight Capital Cities - All Groups consumer price index.[36]

(c) a term of a site agreement that states the basis for working out the amount of an increase in the site rent as a market review of site rent is of no effect.[37]

(d) except as provided under section 191, section 69F applies in relation to a site agreement whether entered into before or after the commencement.[38]

(1) This section applies if -

(a) before the commencement, a general increase notice was given to a home owner; and

(b) the general increase notice was accompanied by a market valuation for the market review of site rent; and

(c) the general increase day stated in the general increase notice is a day after the commencement.

(2) This Act, as in force immediately before the commencement, continues to apply for the purpose of working out the increase in site rent payable from the next general increase day.

(3) However -

(a) the amount by which the site rent is increased under this section must not exceed the percentage increase in site rent permitted under section 69B(2); and

(b) section 69B(3) applies to an increase in site rent under this section.

[45] Section 191 is not applicable because the general increase day in this dispute is not a day after commencement of the Amendment Act. In my view it sets out the limited circumstances where the Amendment Act will have some 'retrospective' application. I have had regard to the Explanatory Notes in relation to the Bill of the Amendment Act. It notes:[39]

Amendments within the Bill will impact on the rights and liberties of individuals by affecting the operation of site agreements regulated by the Act. These provisions operate prospectively from commencement of the amendments. However, notwithstanding their prospective operation, these provisions will impact site agreements in place prior to commencement by imposing new obligations that were not required at the time of entering the agreement. In this sense, provisions may impact the rights of parties retrospectively.

[46] The Explanatory Notes also states, in reference to the changes to the definition of CPI:[40]

This change will apply to existing site agreements but will not undo any increase already imposed.

[47] There is a common law presumption against retrospective operation of legislation in the absence of a clear statement to the contrary.

[48] As the then President Wilson J in Mahoney v Corrin stated:[41]

[14] ...The presumption was summarised by Dixon CJ in Maxwell v Murphy:

The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to past events.

[16] In the normal course a dispute is decided using the legislation which was current at the time of the events out of which the dispute arose. If the legislation used was passed before the relevant events, the legislation is called prospective. However, if the legislation used was passed subsequent to the relevant event, then that legislation is described as being retrospective.

[17] The potential mischief of retrospective legislation is clear from what is sometimes called up as the classic example of it: e.g. a person who, performing a lawful act one day, is then exposed to criminal sanctions attached to that act by some later change to the legislation.

[18] Recently, in Bell v Police Kourakis CJ explained the objectionable nature of retrospective legislation:

The injustice of retrospective legislation and its inconsistency with the general concept of the rule of law rests, fundamentally, in the denial of a person's capacity to make an informed choice about how to conduct his or her affairs in a way which will either fall within, or outside of, the scope of the legislation.

[19] As observed in Coleman v Shell Co of Australia Ltd by Jordan CJ: 'there has been some ambiguity in the use of the word "retrospective"'. It follows that some care is required as to what is meant by the term before concluding that the presumption has been engaged.

[20] First, a distinction can be made between legislation having a prior effect on past events and legislation basing future action on past events. These circumstances were contrasted by Jordan CJ in Coleman (emphasis added):

[A]s regards any matter or transaction, if events have occurred prior to the passing of the Act which have brought into existence particular rights or liabilities in respect of that matter or transaction, it would be giving a retrospective operation to the Act to treat it as intended to alter those rights or liabilities, but it would not be giving it a retrospective operation to treat it as governing the future operation of the matter or transaction as regards the creation of further particular rights or liabilities.

(a) The site agreement must state the basis for working out the increase in site rent. Examples of bases given are a percentage of the site rent calculated by reference to the CPI number for a stated period or market review.[42]

(b) Appropriate notice of the proposed site rent increase must be given, including the basis for increasing the site rent and how the increase has been worked out.[43]

(c) If the home owner disputes the proposed site rent increase on the basis it is excessive the home owner must give the park owner a dispute negotiation notice within 28 days after receiving the general increase notice (emphasis added).[44]

(d) The home owner may apply to the Tribunal for an order.[45]

(e) The Tribunal may make an order:[46]

(i) reducing the amount of the increase by a stated amount;

(ii) setting aside the increase;

(iii) confirming the increase with conditions the Tribunal considers appropriate.

(f) The Tribunal may have regard to matters set out at section 70(5), which I set out later in these reasons at [65].

(g) If the site rent increase is set aside or reduced, the park owner must refund the difference to the home owner.[47]

(h) The Tribunal may appoint a valuer to assist under certain circumstances, none of which apply in this case.[48]

(a) The main object of the Act is to regulate and promote fair trading practices in the operation of residential parks to protect home owners.[49] Important objects are encouraging the continued growth and viability of the residential park industry in the State.[50]

(b) The park owner has the responsibility to maintain the common areas[51] and communal facilities[52] in a reasonable state of cleanliness and repair and fit for use by the home owner.[53]

(c) The park owner has the responsibility to ensure the times the park owner/manager is available to be contacted by the home owner are reasonable, having regard to all the circumstances, including the utilities supplied by the park owner.[54]

(d) The park owner is to comply with the site agreement for the site and the park rules.[55]

(e) The home owner has the responsibility to pay the site rent and other charges payable under the site agreement.[56]

[51] I am satisfied that at least some of the Applicants are a 'home owner', Ingenia Communities Group, Ingenia Communities Holdings Limited ('Ingenia') is a 'park owner' and the park is a 'residential park' for the purposes of the Act and that the dispute is a 'residential park dispute' because it is a dispute between the park owner and home owner under a site agreement about the parties' rights or obligations under the agreement or the Act.[57] At least some of the Applicants have complied with the mandatory pre-proceeding steps and have made a valid application for a Tribunal hearing enlivening the jurisdiction of the Tribunal to hear and make orders in respect of those Applicants.

(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).

[53] The Applicants' submissions[59] indicate that some Applicants have left the park, passed away or no longer wish to participate. The submission identifies 20 sites, which are a subset of the 67 sites subject to the market review.

(a) 15 Second Avenue;

(b) 16 Second Avenue;

(c) 46 First Avenue;

(d) 48 First Avenue;

(e) 50 First Avenue;

(f) 62 First Avenue;

(g) 63 First Avenue;

(h) 69 Golf Links Drive;

(i) 72 Golf Links Drive;

(j) 74 Golf Links Drive;

(k) 87 Day Lane;

(l) 88 Day Lane;

(m) 93 Day Lane;

(n) 101 Gold (sic) Links Drive;

(o) 140 Norman Crescent;

(p) 141 Norman Crescent;

(q) 145 Norman Crescent;

(r) 146 Norman Crescent;

(s) 149 Norman Crescent;

(t) 162 Webb Crescent.

[55] As I understand the submissions, and in view of the site rent information referred to later in these reasons at [82], these are the sites, in respect of which the home owners no longer wish to or are no longer eligible to proceed. Some of the home owners have previously been removed as applicants. There is no evidence that some ever sought to participate in the proceedings. I summarise the evidence at Annexure B.

[56] The 2020 Reprint also provides[60]

(1) A person who owns a residential park is a park owner.

(2) Each of the following is also a park owner -

(a) 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 subsection (1);

(b) a mortgagee in possession of a residential park for which site agreements are in force;

(c) another successor in title of a person mentioned in subsection (1).

[57] No issue has been raised as to whether Ingenia is a park owner. I do not consider that matter further.

[58] Section 14A of the 2020 Reprint defines 'residential park dispute'. It relevantly includes a dispute between the park owner and home owner under a site agreement about the parties' rights or obligations under the agreement or this Act. It also includes a dispute between the home owners for two or more sites in a residential park about a home owner's rights or obligations under this Act.

2021 Rent Review - Should the increase set out in the General Increase Notices dated 9 December 2021 ('Notices') be reduced by 50% because the increase in site rent is excessive?

[59] I find that the site rent increase proposed by the general increase notice given on 10 December 2021 to the following home owners, provided they remain home owners, is reduced by half,[61] because the increase in each case is excessive:

(a) Jennifer Eastwell;

(b) Sandra Craig;

(c) Alison Homann;

(d) John Keeble;

(e) Keith Rainbird;

(f) Ann Lincoln;

(g) Shirley Tear;

(h) Catherine Tilley.

[60] I find that the site rent increase proposed by the general increase notice given on 10 December 2021 to the following home owners, provided they remain home owners and the site rent increase proposed resulted in an increase of 26% or more, is reduced by half,[62] because such an increase in each case is excessive:

(a) Lorraine Tyler;

(b) Ross Tyler;

(c) Barbara Griffiths.

[61] I find that the increase proposed to the Applicants referred to at [59] should be reduced because the proposed increase in site rent was more than 26% in each case, which I find is excessive having regard to the ordinary meaning of that term and the matters in section 70(5) of the Act. The Applicants sought a reduction of the increase by 50%. Such a reduction still results in an increase of more than 13%, which remains a significant increase. In the absence of any specific evidence as to viability of the park, I find that the amount of the increase for those home owners should be reduced by half.

[62] In the absence of specific evidence of the size of the proposed increases to site rents for the Applicants referred to at [60] I have made a conditional order for the same reasons.

[63] The Applicants[63] seek to reduce increases advised in general increase notices reliant on a valuation by Cushman and Wakefield ('Valuation') and contend that the proposed increase is excessive and should be reduced by 50%.

[64] The Applicants do not contest the validity of the Notices. I do not consider that issue. They say the increase is excessive. They rely upon section 70(1) of the Act.

(1) This section applies if -

(a) the park owner for a residential park gives a home owner for an eligible site a general increase notice for a proposed increase in site rent; and

(b) the home owner disputes the amount of the proposed increase on the basis it is excessive.

(2) The home owner must, within 28 days after receiving the general increase notice, give the park owner a dispute negotiation notice for the dispute.

(3) The home owner may, subject to section 116, apply to the tribunal for an order under subsection (4).

_Note - _

Under section 141, a group of home owners may make a joint application in relation to a residential park dispute arising out of the same or similar facts or circumstances.

(4) If the home owner applies under subsection (3), the tribunal may make any of the following orders -

(a) an order reducing the amount of the increase by a stated amount;

(b) an order setting aside the increase;

(c) an order confirming the increase on the conditions, if any, the tribunal considers appropriate;

(d) another order the tribunal considers appropriate.

(5) In deciding the application, the tribunal may have regard to the following -

(a) the range of site rents usually charged for comparable sites in comparable residential parks in the locality of the park;

(b) if it is impractical to obtain data for the range of site rents mentioned in paragraph (a), data is not available for that range or it is just and equitable to do so in the particular circumstances - the range of site rents usually charged for comparable sites in comparable residential parks in comparable localities to the locality the park is in;

(c) if it is impractical to obtain data for the range of site rents mentioned in paragraph (a) or (b), data is not available for that range or it is just and equitable to do so in the particular circumstances - general trends in rent for residential accommodation in the locality the park is in;

(d) the increased site rent compared to the previous site rent;

(e) the frequency, and amount, of past increases in the site rent payable under the agreement;

(f) any increase in the CPI number during the previous site rent period;

(g) the amenity or standard of the common areas and communal facilities;

(h) any withdrawal of a communal facility or service previously provided at the park;

(i) any addition of a communal facility or service not previously provided at the park;

(j) any increase in the park owner's operating costs for the park during the previous site rent period;

(k) whether the increase is fair and equitable in all the circumstances of the case;

(l) anything else the tribunal considers relevant.

(6) If, in deciding the application, the tribunal makes an order mentioned in subsection (4)(a) or (b), the park owner must refund to the home owner any overpayment of the site rent since when the increased site rent has been paid.

(7) An amount payable to the home owner under subsection (6) is recoverable as a debt.

(8) In this section -

previous site rent means the site rent payable under the agreement before the increase.

previous site rent period means the period commencing on the first day the previous site rent was payable and ending on the day the tribunal decides the application.

[66] The term 'excessive' is not defined in section 70 or in Schedule 2 of the Act.

[67] In deciding whether the site rent increase is excessive I may have regard to the considerations set out in section 70(5) of the Act as referred to above.

[68] The Applicants and Ingenia did not provide comprehensive submissions or evidence in relation to each of the listed matters. I consider the listed matters below.

[69] The Applicants dispute the Valuation but have not produced any expert evidence to challenge the Valuation. Essentially, the Applicants contend that the valuer should have considered or given more weight to:

(a) the park owner's failure to maintain common areas;

(b) the reduction of park staff hours;

(c) the location, facilities and services being inferior to those in comparator residential parks, which are newer and better presented.

(d) the terms of old site agreements rather than just new site agreements.

[70] The park owner essentially says that the Valuation was performed by a reputable valuer and the increases simply seek to implement the market review contemplated by the home owner's site agreements. It says, in the absence of valuation evidence to the contrary, the Valuation should prevail, the increases be confirmed and the application be dismissed. However, the range of matters that the Tribunal may have regard to set out in section 70(5) of the Act demonstrates that valuation evidence alone is not determinative of whether the increase proposed is excessive to a particular applicant/home owner. The Tribunal has found, and I agree, that 'the task of the Tribunal is not to determine the market rent. Its task is to determine whether the proposed increase in site rent is excessive.'[64]

[71] There is evidence before me that following mediation, staff hours have changed.[65] The evidence is that this change occurred after the date of the Market Review. I do not consider that evidence further.

(a) the age of part of the residential park, which they say has a more rundown appearance, many trip hazards and decaying roads, which make it difficult to safely traverse with wheelie walkers and mobility scooters.

(b) lack of drainage off rooves in stage two, leading to roof water running on the ground and collecting under homes becoming stagnant and emitting unpleasant odours.

(c) lack of public transport to access certain local shopping centres.

(d) significantly fewer common area facilities than comparator residential parks, including a lack of security features. A comparison table is included in the Applicants' documents. They say that it was compiled from information available on the relevant park's websites and from brochures they acquired.

[73] There is evidence before me that these issues or many of them were raised in writing with the valuer.[66]

The range of site rents usually charged for comparable sites in comparable residential parks in the locality of the park or if not available, the range of site rents usually charged for comparable sites in comparable residential parks in comparable localities to the locality the park is in or if both are not available, general trends in rent for residential accommodation in the locality the park is in

[74] The Valuation gives some evidence of the range of site rents charged, for what the valuer considers comparable sites in comparable residential parks in the locality of the park.[67]

[75] The Applicants do not seek to assert that the comparators are not in the locality of the park. I am satisfied that the comparators are in the locality of the park. The evidence is, and I accept, that the comparators are all within 12 kms by road.[68]

[76] The Valuation states that it is a Market Rent Assessment Report in respect of 67 sites and that the date of assessment is 18 October 2021. The Valuation clearly states that $182.50 per week per site is their valuation of market rent on that day.[69] The uncertainty qualification[70] does not detract from that statement. With respect, the Applicants have misunderstood the nature of the qualification. It does not indicate that there has been a margin added.

[77] The Valuation notes that market rent is defined by IVS 2017 as:[71]

Market Rent is the estimated amount for which an interest in real property should be leased on the valuation date between a willing lessor and a willing lessee on appropriate lease terms in an arm's length transaction, after proper marketing and where the parties had each acted knowledgeably, prudently and without compulsion.

[78] Evidence of the amount achieved in the market, through new site agreements, is persuasive evidence of market rent in accordance with the IVS definition. Site rents under older site agreements are not evidence of current market rent. It is therefore unsurprising that the Valuation referenced new site agreements. In any event, the evidence is that the valuer was provided with sample site agreements from 2011 through to 2019[72] and a tenancy schedule for all 67 sites.

[79] The Valuation gives some general evidence of the range of site rents charged in Logan and Southern Brisbane:[73]

(a) Manufactured Housing Estates: $160 to $180 per week;

(b) Lifestyle Villages: $180 to $200 per week.

[80] The rental evidence ranges from $173.50 per week to $188 per week. The Valuation states that the best evidence is provided by Halcyon Rise and Amber by Living Gems.[74] The evidence is that the weekly rents for new agreements are $186.30 and $182, respectively. The Valuation sets out in reasonable detail the comparison and whether the subject property warrants a lower, a higher or a similar site rent in the valuer's opinion.

[81] In the absence of contrary valuation evidence, I accept the Valuation.

The increased site rent compared to the previous site rent, the frequency, and amount, of past increases in the site rent payable under the agreement

[82] A table showing increased site rent compared to the previous site rent is before me.[75] It lists information in respect of 27 sites. It shows that the increase is, on my calculation, approximately:

(a) 6.55% for the sites listed, which are calculated per week;

(b) 8.81% for the sites listed, which are calculated per fortnight;[76]

(c) 26.09% for sites #27 and #28;

(d) 29.95% for site #10;

(e) 37.09% for site #26;[77]

(f) 26.05% for the remainder of the sites listed, which are calculated per month.

[83] The Applicants have provided some evidence of the site rent increases from and including 2013.[78] Ms Eastwell's evidence is that in respect of her site agreement:

(a) the 2021 review, the subject of this dispute, was 26.53%.[79]

(b) the total of her CPI increases since the previous market review in 2018 was 6.6%;[80]

(c) the total of her increases from and including 2017 before the 2021 review was 10.44%.[81]

Any increase in the CPI number during the previous site rent period

[84] There is no evidence before me of the increase in the CPI number during the previous site rent period.

[85] The 2020 Reprint defines CPI as 'the all groups consumer price index for Brisbane published by the Australian statistician'.[82]

[86] The last general increase day set out in the Notices, in evidence before me, were in January 2021.[83] The CPI number published prior to that date would be for the September 2020 Quarter and the CPI number published prior to the giving of the Notices would be the September 2021 Quarter.

[87] The Australian Bureau of Statistics website shows that the all groups consumer price index for Brisbane for the September 2021 Quarter was 120.7, being a 3.9% change from the September 2020 Quarter.

[88] The change in CPI is significantly less than the proposed market review increase.

The amenity or standard of the common areas and communal facilities

[89] The Applicants claim that the park owner has failed to maintain common areas. They say that there has been no significant improvement to the residential park to justify such a high increase.

[90] In support of their contentions, the Applicants have provided photographs of areas of the residential park, which they say were taken between April and July 2022, which they say is not long after the market review. The assessment date was 18 October 2021. I accept that at least some of the photographs e.g. of the extent of fencing represent the general state of some areas of the residential park about the time of the market review but they are not photographs of the residential park on or about 18 October 2021 because they were taken at least five months afterwards. Ingenia provided photographs of areas of the park, which purport to correspond to photographs provided by the Applicants, as at 1 July 2024.[84] These photographs were taken long after the date of the Market Review. They are not photographs of the residential park on or about 18 October 2021. I do not consider that evidence further.

(a) the communal facilities appear to have been the subject of ongoing maintenance and repair.

(b) overall, the facility is generally well-presented and appears to have been reasonably maintained.

[92] As referred to earlier the Applicants highlight:

(a) the age of part of the residential park, which they say has a more rundown appearance, many trip hazards and decaying roads, which make it difficult to safely traverse with wheelie walkers and mobility scooters.

(b) lack of drainage off rooves in stage two, leading to roof water running on the ground and collecting under homes becoming stagnant and emitting unpleasant odours.

(c) significantly fewer common area facilities than comparator residential parks, including a lack of security features. A comparison table is included in the Applicants' documents. They say that it was compiled from information available on the relevant park's websites and from brochures they acquired.

(d) that the two residential parks the Valuer particularly considered, Halcyon Rise and Amber by Living Gems, are much newer villages with all new roads and infrastructure compared to Chambers Pines, which has some new roads and infrastructure but has some up to 40 years old. I accept that the two primary comparators are newer villages than the subject residential park.

[93] Ingenia points to drainage work undertaken.[86] The evidence is that this work was undertaken after the date of the Market Review. I do not consider that evidence further other than that it is some admission of its prior need.

Any withdrawal of a communal facility or service previously provided at the park

[94] There is no contention that this is applicable other than a reduction of staff hours.

Any addition of a communal facility or service not previously provided at the park

[95] There is no contention that this is applicable to justify the increase.

Any increase in the park owner's operating costs for the park during the previous site rent period

[96] The park owner has not provided evidence of any increase in operating costs.

Whether the increase is fair and equitable in all the circumstances of the case

[97] The Applicants submit, and I accept, that many of the home owners are on limited incomes and that increases in site rent affect their ability to apply their limited incomes to other living expenses.

[98] The park owner's evidence is, and I accept, that:[87]

(a) site fees are applied to various components including maintenance of facilities, staffing and for leasing the land;

(b) it offered a six month pause on the 2021 Market Review increase and that each home owner subject to that increase accepted the offer.[88]

[99] The park owner has not provided evidence of:

(a) the relative proportions of the components referred to above but concedes the majority is for leasing the land;

(b) the impact on its viability should the increase be set aside or reduced.

[100] There are no other matters I consider relevant.

[101] The Tribunal has previously found, and I agree, that it:

...is required to balance the interests of both home owners and the park owners when determining whether a site rent increase is excessive. While it is in the interests of home owners to keep increases at a minimum the park owner must have a sufficient return to maintain their business.[89]

[102] Having regard to the various factors set out above and the objects of the Act:

(a) I am not satisfied that the 2021 Market Review increase could be regarded as excessive, within the ordinary meaning of that term, for the home owners whose increases were approximately 6.55% and 8.81% particularly where a six month pause was offered and accepted, which effectively halved the extent of the total site rent increase for the year.

(b) I am satisfied that the 2021 Market Review increase is excessive, within the ordinary meaning of that term, for the home owners whose increases were in excess of 26%, even though the six month pause was offered and accepted, which effectively halved the extent of the total site rent increase for the year but has a continuing impact on future site rents. Such a large increase is not fair and equitable to such home owners, many of whom are on limited incomes.

[103] The park owner must refund any overpayment of the site rent to the named home owners because of this decision since when the increased site rent has been paid.

Is the park owner permitted to charge GST on site rent where the site agreement states there is no GST payable? Should the park owner refund GST it charged contrary to the site agreement?

[104] I am not satisfied that the Applicants have established that the park owner has not complied with the site agreements or the Act and therefore I am not satisfied that the Applicants have established the claim for a refund.

[105] The Applicants say that there are 16 site agreements where home owners are being charged GST on the site rent where the site agreements state no GST is payable. The 16 sites and therefore home owners/applicants have not been identified. They rely upon the following:

(a) section 17(f) - a park owner must comply with the site agreement;

(b) section 69 - the increase must be applied according to the site agreement;

(c) section 69A - the method of applying the increase must be stated in the site agreement.

[106] Although the Applicants have not expressly referred to it, I consider this claim to be an application under section 117 of the Act.

[107] An extract of a sample 'old site agreement' is provided along with an extract of an advice from Caxton Legal Centre Inc ('Advice'). There is no evidence before me as to when this sample site agreement was entered into e.g. before or after the commencement of A New Tax System (Goods and Services) Act 1999 ('GST Act'). However, the extract appears to be consistent with Ms Eastwell's site agreement, which commenced 11 May 2012.

[108] ST4(d) in the extract states that 'All Site Rent and other moneys payable by the Home Owner under this Site Agreement are exclusive of GST unless otherwise stipulated'. ST4 also provides that if any GST or similar tax is assessed, imposed or otherwise becomes payable on this Site Agreement the Home Owner must pay the GST to the Park Owner at the same time and in the same manner as the payment for the relevant Supply.[90] The Advice notes that the Australian Tax Office ('ATO') considers that manufactured home parks are supplies of long term accommodation in commercial residential premises subject to a concessional rate of GST.

[109] Both the Advice and the park owner's submissions[91] refer to Goods and Services Tax Ruling ('GSTR') 2012/6. A copy available on the ATO's website provides at 110A:

'Home parks' in which sites for moveable homes are rented and the homes themselves either rented or occupied by their owners are commercial residential premises under paragraph (f) of the definition, as they are similar to caravan parks.

[110] The evidence is that since it became park owner, in compliance with the GST Act, having regard to GSTR 2012/6, Ingenia charges and remits GST on site rent at the concessional rate.

[111] The Applicants have, with respect, misunderstood ST4. There is nothing in ST4 which prohibits the charging of GST on site rent; on the contrary, it specifically provides that it may be payable.

[112] In any event, the park owner's evidence is that it does not increase the site rent for GST, it treats the site rent amount as inclusive of GST so that GST is borne by it rather than the home owners.[92]

[113] I am not satisfied that the park owner is acting contrary to the extract of the site agreement of the Act and therefore I am not satisfied that any refund is payable.

Is the park owner permitted to charge site rent increases calculated by reference to different CPI formulae?

[115] I am not satisfied that the Applicants have established that the park owner has not complied with the Act and therefore I am not satisfied that the Applicants have established the claim for a refund.

[116] The Applicants contend that relying upon different CPI formulae the park owner is acting in contravention of the Act, which provides that it must not work out an increase in the site rent using more than one basis at one time.[93]

[117] They rely upon sections 69, 69B(1) and (2) of the Act.

[118] Although the Applicants have not expressly referred to it, I consider this claim to be an application under section 117 of the Act.

(1) This division applies if -

(a) a site agreement between the park owner for a residential park and a home owner provides for an increase in the site rent payable under the agreement; and

(b) the park owner proposes to increase the site rent as provided for under the site agreement.

(2) However, this division does not apply if the site rent is proposed to be increased to cover a special cost.

(3) The site rent can not be increased as provided for under the site agreement unless the park owner complies with sections 69A to 69E.

(1) The park owner must not work out an increase in the site rent using more than 1 basis at one time.

_Example - _

A site agreement provides for increases in site rent on the bases of an increase in the CPI number and market review of site rent. An increase in site rent under the agreement based on a market review of site rent could not include an increase in the CPI number even though provided for in the agreement.

(2) If the site rent has been increased under this division, the park owner must not increase the site rent under this division on any basis provided for in the site agreement within 1 year (the site rent year) after the day the site rent was last increased under this division.

(3) For subsection (2), site rent is taken to be increased on the first day the site rent is payable at an increased rate.

(4) To remove any doubt, it is declared that subsection (2) applies in relation to the site agreement for the site rent year even if the home owner became a party to the agreement in that year.

[121] In construing sections 69 and 69B, I have had regard to section 69C which provides:

(1) The park owner must nominate the same day (the general increase day) when the site rent payable under the site agreements for all eligible sites in the residential park will be increased on the same basis (the relevant basis).

(2) A site is an eligible site for which the general increase day may be nominated if, under the terms of the site agreement for the site, the site rent may be increased on the relevant basis on or before the general increase day.

(3) Subsection (4) applies if the general increase day is nominated under subsection (1) for an eligible site and a general increase notice stating the general increase day (the stated increase day) is given to the home owner for the site under section 69E.

(4) The next general increase day that may be nominated under subsection (1) for any eligible site in the residential park must be at least 1 year after the stated increase day.

[122] Over time the terms of the site agreements have changed so that not all home owners' site agreements have the same terms. A limited number of site agreements are in evidence before me. I summarise their relevant provision below. They provide for market review in certain years with CPI increases in other years. There are different CPI increase formulae in different site agreements.

[123] Copies of the following site agreements are in evidence before me:

(a) Dated 23 December 2016, 34 Second Avenue, annual site rent increases on 1 July, CPI Sydney (All Groups Index) + $2; Market review every 3 years;[94]

(b) Dated 23 June 2020, Site 9, annual site rent increases, CPI Brisbane (All Groups) + 2%; Market Review every third year; first general increase day 1 December 2021;[95]

(c) Dated 6 February 2018, Site 193, annual site rent increases on 1 July, CPI Sydney (All Groups Index) + $2; Market review every 3 years;[96]

(d) Dated 13 June 2012, 2 Third Avenue, annual site rent increases, CPI (as per the Act) + proportionate increase in Local Government Charged + proportionate increase in Land Tax; Market Review every third year; general increase day 30 June.[97]

[124] I accept that different formulae result in a different percentage increase.

[125] To the extent that each applicant's site agreement was identical to any of the versions set out at [123] and applying the ordinary meaning of the provisions and having regard to the objects of the Act, I find that there is nothing in sections 69, 69B or 69C of the Act nor the Explanatory Notes to the Bill, which inserted these provisions, which clearly limits what may be a relevant basis agreed in a site agreement.

[126] This is consistent with the Tribunal's findings in Homans & Ors v Hammond Village Operations Pty Ltd.[98]

[127] As noted earlier in these reasons, the 2020 Reprint defines CPI as 'the all groups consumer price index for Brisbane published by the Australian statistician'.[99] There is nothing in the 2020 Reprint which prohibits the parties from agreeing, in an individual site agreement, to apply a CPI formula which uses a different definition. Going forward the Amendment Act may alter that position.

[128] On the evidence before me I am not satisfied that the park owner was in breach of the Act or the site agreements[100] in relying upon different 'CPI' increase formulae. I note that no site rent increase notices based on different 'CPI' increase formulae issued within 28 days of the Dispute Notice are in evidence before me.

Are the site rent CPI increases excessive because CPI increases are applied to GST-inclusive site rent to which GST is then applied? Should the Park Owner recalculate increases and refund homeowners?

[130] I am not satisfied that the Applicants have established this claim and therefore I am not satisfied that the Applicants have established the claim for a refund.

[131] The Applicants say that the park owner should calculate the CPI increase by removing the GST from the site rent, then apply the CPI and then apply the GST. By applying the CPI to the GST inclusive site rent then applying GST they say the resultant increase is excessive. They rely upon section 70(1) of the Act. That section applies if the park owner for a residential park gives a home owner for an eligible site a general increase notice for a proposed increase in site rent and the home owner disputes the amount of the proposed increase on the basis it is excessive.

[132] There is no evidence before me that any Applicant received a general increase notice for a CPI increase calculated in this way, who then gave a dispute negotiation notice as contemplated by section 70(2) within 28 days. The only general increase notices delivered in December 2021 in evidence before me relate to the market review. The only dispute negotiation notice in evidence before me is dated 5 January 2022. I am not satisfied that this dispute is validly before me. It should be dismissed.

[133] If I am wrong about the claim being validly before me, as indicated earlier in these reasons the Tribunal may consider the matters set out in section 70(5) in deciding whether an increase in site rent is excessive.

[134] An extract of a sample site agreement is provided. At section 10 it states:

Site Rent Increases

Method of calculation (e.g. current rent + CPI or x%)

Current site rent x CPI Percentage Increase + $2 for the 12 month period preceding the applicable annual rent review date (for example, if the percentage increase in the CPI for the preceding 12 month period is 2.5% then the increase would be current site rent x 2.5% + $2)

[135] The Applicants concede that the difference derived from the two methods of calculation result is small per site agreement. Having regard to the matters set out in section 70(5) of the Act and having regard to the ordinary meaning of the term excessive, I would not be satisfied that such a small difference can be regarded as excessive.

Human Rights Act 2019 (Qld) ('HR Act')

[137] The HR Act commenced on 1 January 2020. All individuals in Queensland have human rights.[101] A human right may only be subjected to reasonable limitations.[102] No party was legally represented in the proceedings. No party made any submissions about the application of the HR Act.

(a) I am not acting as a public entity because I am not acting in an administrative capacity;[103] and

(b) I have interpreted statutory provisions, to the extent possible that is consistent with their purpose, in a way that is compatible with the Applicants' human rights.[104]

[139] I accept that this application and the on the papers hearing potentially impacts the Applicants' rights to a fair hearing and I considered them in conducting the hearing. All parties were directed to file documents upon which they relied. In coming to my decision, I considered the documents filed.[105]

[140] I accept that these proceedings and my decision potentially impacts other rights, in particular property rights[106] and the right to privacy and reputation.[107] I have considered the Applicants' human rights and am satisfied that the decision is compatible with their human rights as any limitations on those rights are reasonable and justifiable.[108] Any limitation of the Applicants' human rights is consistent with the objects of the Act[109] and the objects of the QCAT Act.[110]

If Applicant would be removed as noncompliant with s 116(3)

Complied with s 116(3) Signed schedule indicating consent to be joined

At a glance

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Judgment (321 paragraphs)

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