Publications

Manufactured Homes Update - March 2018

By Anthony Pitt / 08 March 2018

Amendments to the Manufactured Homes (Residential Parks) Act 2003

As you will recall from our previous articles, the Housing Legislation (Building Better Futures) Amendment Act 2017 (Qld) (Amendment Act), which contains various amendments to the Manufactured Homes (Residential Parks) Act 2003 (Qld) (MHRP Act), was assented to on 10 November 2017. 

Despite that, only the following provisions of the Amendment Act commenced on assent:

  • Section 8 - which merely states that Part 4 of the Amendment Act amends the MHRP Act;
  • Section 13 - which adds the home owner’s obligations under new Section 105 (below) to the list of home owner responsibilities;
  • Section 14 - which adds the park owner’s obligations under new Section 104 (below) to the list of park owner responsibilities; and
  • Section 53, to the extent it inserts new part 16 - which are the obligations about behaviour of park owners and home owners in the new Sections 104 and 105.   

All of the other provisions of the Amendment Act that amend the MHRP Act commence on a day to be fixed by proclamation. A proclamation has not yet been issued, and it is unknown when that will occur. However, when it is issued, it will list out the relevant commencement dates of the remaining provisions of the Amendment Act. 

Some of the provisions of the Amendment Act require new approved forms to be used, but these are also yet to be made available. 

Once the proclamation is made, we will publish a further article for park owners to let you know the relevant commencement dates. 


Miss a QCAT hearing date at your peril

In Claremont Holdings Pty Ltd v Marsh [2017] QCAT 297, the park owner filed an application seeking orders to terminate a tenancy agreement as well as for the payment of arrears and other moneys. A hearing was set down before the Tribunal on 20 June 2017, but neither party appeared. As a result, the park owner’s application was dismissed that day. 

On 3 July 2017, the park owner filed an application seeking to reopen the proceeding, stating that the park owner “missed the hearing date due to a glitch in my computer, the diary reminder did not work properly and failed to send me a reminder of the hearing date”

Section 138 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) permits the Tribunal to reopen a proceeding and hear it afresh if a party has a reasonable excuse for not attending. 

However, the Tribunal pointed out that the park owner was given notification of the date of the hearing, and was clearly aware of the date that they were required to appear. It was therefore due to the park owner’s own mistake that they did not appear. 

The Tribunal stated that a computer diary reminder glitch does not constitute a reasonable excuse for non-attendance in circumstances where it was the park owner’s choice to be reminded of the hearing date in that manner. Accordingly, the application to re-open the proceeding was refused. 


[Anchor] Duty of Care owed by occupiers: have you considered wet weather?

A recent NSW Court of Appeal decision has emphasised the duty of care owed by occupiers extends to implementing additional measures to prevent slip and falls on their premises during adverse weather.

In Sutherland Shire Council v Safar [2017] NSWCA 203, the Court of Appeal dismissed an appeal made by a local government against a trial judge’s findings that it was responsible for a patron’s slip and fall.

Facts

Ms Safar was attending a dance eisteddfod at the Sutherland Entertainment Centre on 23 June 2013 when she slipped on wet parquetry floor adjacent to the foyer. The Council was the owner and occupier of the premises. It was a rainy day and Ms Safar claimed the Council ought to have taken steps to eliminate or reduce the risks of slipping on the wet parquetry floors.

First trial outcome

Ms Safar was successful at first instance and awarded $288,820 in damages.

The Judge found that:

  • It was reasonably foreseeable that a patron could slip and fall on the wet parquetry floor
  • The Council should have taken the following precautions:
    • Provided a bucket for umbrellas;
    • Provided patrons with a place for raincoats to be hung up (such as a cloak room);
    • Provided a bagging system for wet umbrellas;
    • Employed a person with a mop to wipe water on the floor after people had entered the auditorium; and
    • Placed mats on the ground.
  • Had the precautions been taken, the floor would have remained dry
  • The breach of duty by the Council caused the plaintiff’s injury
  • The risk in question (slipping on wet floor) was an obvious risk and in accordance with the Civil Liability Act 2002, the Council had no obligation to warn of it.

The Council appealed the decision on five grounds. The first three grounds related to reasonable precautions which should have been taken by the Council and the last two related to causation.

Appeal outcome

The Court of Appeal dismissed the Council’s appeal. It was unanimously held that the Council breached its duty of care by failing to take reasonable precautions to prevent patrons from bringing wet raincoats and umbrellas into the auditorium.

The Council argued the precautions were not reasonable in the circumstances.

In relation to providing a bucket for wet umbrellas, the Court of Appeal noted that “it would have been a matter of inexpensive simplicity for the Council to have placed bins or receptacles at some appropriate location or at several locations near the entrance to the auditorium….” [78].

The Court of Appeal also noted that providing a bagging system for wet umbrellas was reasonable in the circumstances and should have been contemplated by the Council.

Justice Harrison agreed with the trial judge’s finding that it was entirely reasonable for the Council to insist that patrons leave wet raincoats or other wet items outside the auditorium.

The Court of Appeal disagreed with the trial judge’s conclusion that reasonable precautions extended to placing mats on the ground.

Key points

This decision highlights the various precautions public venues and facilities should take to prevent or minimise the prospects of slips and falls occurring during wet weather.

In determining what precautions a reasonable person in the position of the occupier should have taken, the Court had regard to how slippery the floor in question would be when wet and the history of previous falls at the venue.

It is not enough for an entrant to establish that, had reasonable precautions been taken the risk of injury would be reduced. Instead, what must be shown is that on the balance of probabilities, had reasonable precautions been taken, the slip and fall would not have occurred. This is a question of fact to be determined using common sense.

For more information or discussion, please contact HopgoodGanim Lawyers’ Manufactured Homes or Insurance and Risk teams.

Authors
Anthony Pitt
Special Counsel
Anthony is a Special Counsel in our Dispute Resolution practice who specialises in property-related litigation for his client base of property owners and developers, landlords, manufactured home park owners and bodies corporate.
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