QUEENSLAND CIVIL AND 
ADMINISTRATIVE TRIBUNAL

CITATION:	Village Gardens Pty Ltd v Beekhuyzen [2024] QCATA 66	
PARTIES:	Village Gardens Pty Ltd	

(applicant/appellant)	

	v	
	Ruth Beekhuyzen	

(respondent)	

APPLICATION NO/S:	APL133-23	
ORIGINATING APPLICATION NO/S:	OCL049-22	
MATTER TYPE:	Appeals	
DELIVERED ON:	13 June 2024	
HEARING DATE:	31 May 2024	
HEARD AT:	Brisbane	
DECISION OF:	Senior Member Fitzpatrick	
ORDERS:	1.	The orders made by the Tribunal dated 11 April 2023 are set aside. The following orders are made in substitution for those orders and are made in final disposition of the dispute.
2.	Village Gardens Pty Ltd must:
(a)	consent to the assignment to Hazel Gray of the interest of Ruth Alice Collins, formerly known as Ruth Alice Beekhuyzen in the site agreement dated 10 November 2011 (the assignment);
(b)	give to Hazel Gray the disclosure documents for the site no later than 18 June 2024;
(c)	on 25 June 2024 (the consent day), give consent to the assignment by signing two copies of the Form 8 – Form of assignment (transfer) bearing the date 25 May 2022 submitted to it by Adrian Collins as agent for and on behalf of Ruth Alice Beekhuyzen;
(d)	on 25 June 2024 send both copies of the signed Forms 8 to Ruth Alice Beekhuyzen and Adrian Collins, copied to Hazel Gray.
3.	Ruth Alice Beekhuyzen must as soon as practicable after receiving a copy of the Form of assignment give Hazel Gray a copy of the Form of assignment and her copy of the site agreement.
4.	If Village Gardens Pty Ltd fails to comply with orders 2 (c) and (d) Village Gardens Pty Ltd is taken to consent to the assignment on the consent day.
5.	Ruth Alice Beekhuyzen must pay unpaid site fees in the sum of $5,070.74 to Village Gardens Pty Ltd by 12 July 2024.	
CATCHWORDS:	ENVIRONMENT AND PLANNING – PLANNING – DEVELOPMENT ASSESSMENT AND CONTROL OF PARTICULAR MATTERS – RESIDENTIAL – CARAVAN PARKS AND MOVEABLE DWELLINGS
APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – HEARING OF APPEAL – NON-APPEARANCE OF PARTIES
APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – WHAT IS – DISTINCTION OF ERROR OF LAW AND QUESTION OF FACT – where appellant owns and operates a residential park – where a site agreement was assigned to a third party – where assignment was effected by an agent – where orders were made against a person who was not a party to the proceeding – whether statutory declaration can evidence an agency arrangement – whether agent can assign a residential park site agreement – whether park owner unreasonably refused to consent to a proposed assignment 
Manufactured Homes (Residential Parks) Act 2003 (Qld) ss 43, 48. 50, 117
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 142(3)(b), 146, 147
Service and Execution of Process Act 1992 (Cth)
Christie v Permewan, Wright & Co Ltd (1904) 1 CLR 693
Haritos and Anor v Commissioner of Taxation (2015) 322 ALR 254
Pivovarova v Michelsen [2019] QCA 256
Rintoul v State of Queensland & Ors [2018] QCA 20
Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22	
APPEARANCES & REPRESENTATION:		
Applicant:	Self-represented	
Respondent:	No appearance	

REASONS FOR DECISION
[1]	The decision the subject of the appeal was made on 11 April 2023.
[2]	The applicant Village Gardens Pty Ltd is a residential park owner. The respondent Ms Beekhuyzen was a party to a site agreement for a manufactured home situated in the residential park at Site 61.
[3]	The site agreement was purportedly assigned to Ms Hazel Gray and the manufactured home sold to Ms Gray. Ms Gray has occupied the manufactured home from 19 December 2022.
[4]	By s 48 of the Manufactured Homes (Residential Parks) Act 2003 (Qld) (‘Act’) the assignment of a seller’s interest is not effective unless the park owner has consented to the assignment. Consent may only be given by signing both copies of the form of assignment.
[5]	Section 43 of the Act provides that:
(1)	The park owner under the agreement must not hinder the proposed assignment of the seller’s interest.
(2)	The park owner does not contravene subsection (1) if, under the part, the park owner reasonably refuses to consent to a proposed assignment of the seller’s interest.
[6]	Village Gardens has never consented to the assignment because it was not satisfied that Ms Beekhuyzen intended to assign the site agreement or sell her manufactured home. The assignment was undertaken by Mr Adrian Collins who signed the relevant assignment documents representing that he was acting “for and on behalf of Ruth Collins aka Ruth Beekhuyzen”. No power of attorney was provided by Mr Collins and no identification of Ruth Collins was given which would evidence that she is in fact Ruth Beekhuyzen. Village Gardens have speculated as to whether the transaction is above board.  Village Gardens is also concerned that it may bear some liability for enabling an assignment of the site agreement if the assignment does not reflect Ms Beekhuyzen’s true wishes.
[7]	A statutory declaration was later provided to Village Gardens by Ms Gray’s lawyer. The statutory declaration is given by Ruth Collins and declares that Ruth Alice Collins (formerly Beekhuyzen) of Tasmania is one and the same person as Ruth Alice Beekhuyzen and that she has authorised her son Adrian Collins to represent her in relation to the sale of the home at Site 61 and to sign all forms required, including the Form 7 Notice of proposed assignment and Form 8 Form of assignment pursuant to the Act.
[8]	At the time of the application to the Tribunal there were outstanding fees continuing to accrue from Ms Beekhuyzen and no fees were paid by Ms Gray following her occupation of the manufactured home.
[9]	The Tribunal was satisfied as to service on Ms Beekhuyzen through an email address given on the site agreement. Despite many attempts by the Tribunal to contact Ms Beekhuyzen and Mr Collins they did not respond and did not participate in the proceeding.
[10]	The appeal application was served by email to the same email for Ms Beekhuyzen given on the site agreement. The appropriate notice under the Service and Execution of Process Act 1992 (Cth) was given.  The proceeding has continued to the date of hearing without any participation by Ms Beekhuyzen. 
[11]	The Tribunal registry made efforts to contact Ms Beekhuyzen, including immediately before the hearing of the appeal when a phone call was made to the telephone number on the file said to be her telephone number. The woman who answered refused to identify herself and hung up upon being informed that the Tribunal was ringing to determine if she wished to participate in the hearing. Later in the morning Mr Collins rang the Tribunal registry and advised that he had noted the Tribunal documents upon his return from overseas.
[12]	I am satisfied that the appeal application and notice of the hearing has come to the attention of Ms Beekhuyzen. The hearing proceeded in Ms Beekhuyzen’s absence.
What Village Garden’s sought in the Tribunal
[13]	Village Gardens sought the following orders:
(a)	The park owner is only required to consent to the assignment and enter into a Site Agreement with Hazel Gray upon being provided with the necessary identification and prescribed forms signed by the approved parties as outlined in s 45 and s 47;
(b)	It is reasonable to require outstanding site fees to be paid by Ruth Beekhuyzen or as a condition of consent to any assignment and/or transfer;
(c)	The park owner has not acted contrary to the Act in making investigations as to the bona fides of the purchaser and seller and/or requiring an Order to ensure it is acting lawfully;
(d)	The park owner has not consented to the assignment and therefore it is not effective pursuant to s 48 of the Act.  As a result, Hazel Gray has unlawfully entered the premises and is required to vacate until a time that the park owner has received the necessary proof of identification and given consent to the assignment.
(e)	An abandonment order be made as all reasonable attempts have been made by multiple parties and legal representatives in an effort to contact Ruth Beekhuyzen.
Decision the subject of appeal
[14]	The Member below ordered that;
(a)	If Hazel Gray has paid all site fees then due and payable for the period from 19 December 2022, by 11 May 2023:
(i)	The site agreement for the site the subject of these proceedings shall be treated as assigned to Hazel Gray with effect from 19 December 2022.
(ii)	Ruth Beekhuyzen must pay to Village Gardens Pty Ltd outstanding site fees for the period from 27 May 2022 to 18 December 2022 in the amount of $5,070.74 by 25 May 2023.
(b)	If Hazel Gray does not pay all outstanding site fees in accordance with Order 1:
(i)	The site agreement is not treated as assigned to Hazel Gray.
(ii)	Hazel Gray must vacate the home by 25 May 2023.
(iii)	Village Gardens Pty Ltd must advise Ruth Beekhuyzen in writing (by email…) that Hazel Gray has not paid the outstanding site fees in accordance with order 1 by 18 May 2023.
(iv)	Ruth Beekhuyzen must pay outstanding site fees for the period from 27 May 2022 to 25 May 2023 in the amount of $9,084.62 by 8 June 2023.
(c)	The application is to be listed for a telephone directions hearing, not before 8 June 2023.
[15]	The orders made are not in final disposition of the dispute. Rather they appear to be conditional and anticipate ongoing proceedings.
Have the orders been complied with?
[16]	As at the date of the appeal hearing on 31 May 2024 no part of the orders have been complied with. Village Gardens objected to the Orders and filed the appeal proceeding on 10 May 2023. No outstanding site rental has been paid. Village Gardens continue to refuse to consent to the assignment of the site agreement until it is satisfied that Ruth Beekhuyzen herself has sold her manufactured home and intended to assign the site agreement.
[17]	No stay of the Orders has been made.
Nature of appeal
[18]	Leave to appeal will be required if the decision below is not the Tribunal’s final decision.
[19]	Leave to appeal is required if the grounds raised by Village Gardens raise questions of fact or mixed law and fact, as opposed to questions of law only which do not require leave.
[20]	A question of law may relate to many matters including the legal consequences of proven facts, interpretation of a statute or a statement of legal principle. A question of law may also relate to an error in the process of reasoning when making a finding of fact, including identification of a wrong issue, asking a wrong question, failure to take into account a material matter, and taking into account of an irrelevant matter. If a decision-maker adopts a wrong approach to the task, the decision may be set aside and the matter remitted for reconsideration.
[21]	Questions of fact are questions about what actually took place between the parties.
[22]	Questions of mixed law and fact arise where to decide a question of law, a question of fact must be determined. Put another way, questions of mixed law and fact are whether the facts satisfy the legal tests.  A question of mixed law and fact is not a question of law when what is required of the Appeal Tribunal is the determination of a question of law only, in accordance with s 146 of the QCAT Act.
[23]	If leave to appeal is required Village Gardens must show that:
(a)	the appeal is necessary to correct a substantial injustice;
(b)	there is a reasonable argument that there is an error to be corrected.
[24]	If leave to appeal is granted the appeal must be decided by way of rehearing by reference to the evidence at the hearing before the Member. The Appeal Tribunal will make its own findings of fact and formulate its own reasoning based on those findings.
Grounds of appeal
[25]	Village Gardens submit that the decision of the Member involved the following errors of law:
(a)	failure to apply relevant legal principles to require verification of the identity and intent of Ms Beekhuyzen to a reasonable standard so as to safeguard against fraud;
(b)	failure to consider the requirements in section 14-2010 and 14-2025 of the Land Title Practice Manual;
(c)	a statutory declaration signed in the completely different name of Ruth Collins is not a legal or valid form to identify a person and is not reasonable under the circumstances.
[26]	By way of relief Village Gardens seeks a substituted decision that:
(a)	 it is only required to give consent to the assignment if the seller’s identity can be reasonably verified using legally approved identification documents proving that Ruth Beekhuyzen and Ruth Collins are on and the same individual.
(b)	Necessary identification documents must be provided to Village Gardens in order to proceed with the assignment.
(c)	If identification documents are not provided, Village Gardens is not required to give consent to the assignment.
[27]	Village Gardens submits that it is an issue in the appeal as to whether a statutory declaration is sufficient authority to allow Mr Collins to sell the home on behalf of Ruth Beekhuyzen in comparison to a power of attorney.
[28]	The grounds of appeal and supporting submissions focus on facts which Village Gardens say should have been found by the Member. It is implicit in Village Gardens’ grounds of appeal and submissions that the point of making those findings is to ultimately find that Village Gardens has not unreasonably withheld consent to assignment of the site agreement in contravention of the Act.
Reasons for the decision
[29]	The Member decided to focus on the question of assignment, not whether consent had been unreasonably withheld. 
[30]	The Member found that no assignment of the site agreement has occurred or can be taken to have occurred because of s 48(1) of the Act which states:
The assignment of the seller’s interest is not effective unless the park owner has consented to the assignment.
[31]	The Member found that Ms Gray has no right to occupy the site.
[32]	Findings were made that it was reasonable for Village Gardens to seek to confirm that Ms Beekhuyzen intended to assign the site agreement. Further that the statutory declaration gave no explanation as to why Ms Beekhuyzen was unable or unwilling to complete the forms herself, and the opportunity was not taken to provide other confirmation independent of Mr Collins of his authority to act on behalf of Ms Beekhuyzen. 
[33]	The Member also found that Ms Beekhuyzen had ample opportunity to convey her views if she did not consent to the assignment. 
[34]	The Member noted that Ms Gray is not a party to the proceeding. Despite Ms Gray not being a party to the proceeding the Member determined that the practical resolution was for the assignment to be treated as effective provided Ms Gray pays site fees for the period since she commenced occupation. If Ms Gray did not do so she should be required to vacate the premises. Ms Beekhuyzen was ordered to pay outstanding fees up to the date from which Ms Gray pays site fees.
Discussion
[35]	The result of the determination is that despite finding it was reasonable for Village Gardens to investigate Ms Beekhuyzen’s intentions and that the statutory declaration offered no explanation as to why Ms Beekhuyzen was unable or unwilling to complete the assignment Forms, the Member nevertheless made orders to effect assignment of the site agreement without Village Garden’s consent.
[36]	The only basis given for the orders is the Member’s statement that he would take an approach most likely to achieve practical justice and be least disruptive. It begs the question why the orders were not made on the basis that consent was unreasonably withheld which is the issue at the centre of the park owner’s obligations under the Act.
Have errors of law, fact or mixed law and fact occurred?
[37]	The grounds of appeal put by Village Gardens go to the question of whether it unreasonably withheld consent to the assignment by submitting that the Member should have recognised the need for identification of Ms Collins and required that identification before any order was made giving effect to the assignment.
[38]	As a self-represented litigant Village Gardens has not expressed its grounds of appeal and supporting submissions in a way which fully comprehends the nature of an appeal, including by appropriate characterisation and expression of its grounds. Overall, however it is possible to discern that it is submitted the Member was in error in failing to make findings of fact as to:
(a)	whether in the absence of other evidence as to identity, the terms of the statutory declaration were sufficient to identify Ms Collins as Ms Beekhuyzen and to reflect her intention to appoint Mr Collins as her agent for the purpose of the assignment and sale of her home;
(b)	whether Mr Collins could sign the assignment documents as an agent if he was not appointed under a power of attorney; and
(c)	taking these matters into account whether consent to the assignment was unreasonably withheld.
[39]	In all I think that these are questions of fact and questions of mixed fact and law.
[40]	Village Gardens has not raised the issue, but the Appeal Tribunal cannot ignore a lack of jurisdiction on the part of the Tribunal below to make its orders. I consider that an error of law has occurred by the Member making orders directed to Ms Gray who was not a party to the proceeding. 
[41]	The error is further compounded by ordering an assignment to Ms Gray, to be effective only on payment of outstanding fees by Ms Gray. If consent to the assignment was unreasonably withheld the seller is entitled to have the assignment perfected. Further, a proper legal basis for any obligation by Ms Gray to pay site fees has not been established. That is a matter for separate consideration as between Village Gardens and Ms Gray as to her status in the park and any obligation she may have to pay site fees. 
[42]	The way in which the order is framed is somewhat awkward but there is a further entanglement with Ms Gray in that the amount Ms Beekhuyzen was ordered to pay was dependent on payment of site fees by Ms Gray, and the amount to be paid was calculated from 27 May 2022 to Ms Gray’s date of occupation on 18 December 2022. The sum ordered to be paid is $5070.74. 
[43]	No leave to appeal is required to address an error of law. Under s 146 of the QCAT Act I order that the decision below is set aside. 
[44]	I turn now to the errors of fact and mixed fact and law by considering the evidence below and by making my own findings in accordance with s 147 of the QCAT Act.
The statutory declaration
[45]	There was no evidence before the Member below which might suggest the statutory declaration was not as it purports to be on its face. The document has been witnessed and provides the information Village Gardens was seeking, namely that Ruth Alice Collins was formerly known as Beekhuyzen and that her son Adrian Collins is authorised as her agent to represent her in relation to sale of the home and to sign all forms required under the Act, including the Form 7 Notice of proposed assignment and Form 8 Form of assignment.
[46]	It is an irrelevant consideration that the statutory declaration gave no explanation as to why Ms Beekhuyzen was unable or unwilling to complete the Forms herself. The statutory declaration makes clear that she appoints an agent to do so. As to Mr Collins authority to act that too is answered by the clear statement of his appointment as his mother’s agent.
[47]	I consider the statutory declaration may be taken at face value. I find that the statutory declaration provides notice of Ms Beekhuyzen’s identity and evidence of her appointment of an agent and that no further evidence was required, absent some other evidence that the statutory declaration could not be relied upon.
Can an agent effect an assignment agreement and transfer a manufactured home?
[48]	No interest in land is created by the right to occupy a manufactured home in a park. The home itself is a chattel capable of being disconnected from its site and moved.
[49]	Accordingly, no formality such as a power of attorney is required to enable an agent to sign the relevant assignment documents which might be required if a sale of an interest in land was involved. I was referred to the Land Title Practice Manual (Queensland) and its provisions in relation to acceptable proof of a legal name.  As no change of name affecting a title to land is involved on the facts the Manual is not a relevant document. 
[50]	The Act does not expressly state that an assignment of the site agreement must be signed personally by the seller. The general rule is that what a person may do themselves, they may do by an agent. No particular formality is required to create the relationship of principal and agent. Evidence of agency can be discerned from the statutory declaration.
[51]	For these reasons I consider the Mr Collins as agent for Ms Beekhuyzen had authority to sign the relevant Forms 7 and 8.
Was consent to assignment of the site agreement unreasonably withheld?
[52]	Although the evidence suggests Village Gardens was motivated by concern for Ms Beekhuyzen’s interests, its fears were based on mere speculation which caused it to give no credence to the statutory declaration and Mr Collins powers as an agent.
[53]	On the basis of the contents of the statutory declaration and Ms Beekhuyzen’s entitlement to act through an agent I find that it was unreasonable to withhold consent to the assignment of the site agreement.
Leave to appeal and orders
[54]	On the basis of a rehearing of the evidence and the findings I have made, errors are made out which should be corrected on appeal to prevent substantial injustice. Accordingly leave to appeal is granted. 
[55]	I will act under s 147 of the QCAT Act to substitute my own decision for the orders made below.
Unpaid site fees
[56]	This Tribunal does not have power in these proceedings to order Ms Gray to make any payment to Village Gardens. 
[57]	It was part of the original dispute and a matter before the Member below to address Ms Beekhuyzen’s unpaid site fees in breach of her obligation under the site agreement.
[58]	I have found the Member below was in error to link assignment of the site agreement to payment of unpaid fees. Those fees remain unpaid. 
[59]	I will substitute my own decision in relation to payment of unpaid site fees by Ms Beekhuyzen. The evidence before the Tribunal as to the amount of outstanding fees as at 18 December 2022 was unchallenged and I rely on that evidence in making a substituted order. No additional evidence was sought to be put before the Appeal Tribunal as to any further sum which might be outstanding after 18 December 2022.
Conclusion
[60]	Under s 50 of the Act a seller may apply to the Tribunal for an assignment order requiring the park owner to consent to the assignment of the seller’s interest on a day stated in the order. In this case there has been no application by the seller. The dispute has instead come to the Tribunal on the application of the park owner. As the Tribunal could make an assignment order under s 50 I consider it falls within the ambit of the Tribunal’s power to make the same orders under s 117 of the Act, which is cast in wide terms to make any order the Tribunal considers appropriate to resolve the dispute.
Orders
[61]	On this basis, I order that:
1.	The Orders made on 11 April 2023 are set aside. The following orders are made in substitution for those Orders and are made in final disposition of the dispute.
2.	Village Gardens Pty Ltd must:
(a)	consent to the assignment to Hazel Gray of the interest of Ruth Alice Collins, formerly known as Ruth Alice Beekhuyzen in the site agreement dated 10 November 2011 (the assignment);
(b)	no later than 18 June 2024 give to Hazel Gray the disclosure documents for the site;
(c)	on 25 June 2024 (the consent day), give consent to the assignment by signing two copies of the Form 8 – Form of assignment (transfer) bearing the date 25 May 2022 submitted to it by Adrian Collins as agent for and on behalf of Ruth Alice Beekhuyzen;
(d)	on 25 June 2024 send both copies of the signed Forms 8 to Ruth Alice Beekhuyzen and Adrian Collins, copied to Hazel Gray.
3.	Ruth Alice Beekhuyzen must as soon as practicable after receiving a copy of the Form of assignment give Hazel Gray a copy of the Form of assignment and her copy of the site agreement.
4.	If Village Gardens Pty Ltd fails to comply with orders 2(c) and (d), Village Gardens Pty Ltd is taken to consent to the assignment on the consent day.
5.	Ruth Alice Beekhuyzen must pay unpaid site fees in the sum of $5,070.74 to Village Gardens Pty Ltd by 12 July 2024.