ASPEN PARKS PROPERTY MANAGEMENT and BOSCH
[2011] WASAT 115
•08/07/2011
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: RESIDENTIAL PARKS (LONG-STAY TENANTS) ACT 2006 (WA)
CITATION: ASPEN PARKS PROPERTY MANAGEMENT and BOSCH [2011] WASAT 115
MEMBER: MS L WARD (MEMBER)
HEARD: 8 JULY 2011
DELIVERED : EDITED REASONS DELIVERED ORALLY ON
8 JULY 2011
FILE NO/S: CC 619 of 2011
BETWEEN: ASPEN PARKS PROPERTY MANAGEMENT
Applicant
AND
MAXINE BOSCH
JOYCE BOSCH
Respondents
Catchwords:
Payment of an amount payable under a long stay agreement - Rent - Weekly amount of rent shown on receipts - Error showed the period of rent as monthly rather than weekly - All other information on the receipt referred to weekly rent
Legislation:
Residential Parks (LongStay Tenants) Act 2006 (WA), s 39(1)(a), s 62(4)(d)
Result:
Application successful
Category: B
Representation:
Counsel:
Applicant: Selfrepresented
Respondents : Selfrepresented
Solicitors:
Applicant: Self-represented
Respondents : Self-represented
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The applicant is the park operator and it issued a notice of termination under s 39(1)(a) of the Residential Parks Long Stay Tenants Act 2006 (WA). The notice sought the payment of $3,820.29 and related to rent outstanding between 24 February 2010 and 25 August 2010.
The applicant's case is that the respondents did not pay any rent to it between 24 February 2010 and 25 August 2010, and accordingly owe it $3,820.29.
The respondents have lived in the Coogee Beach Holiday Park since July 2002 on a siteonly basis. They have previously paid rent in cash one week in advance. The respondents submitted that they did pay rent as required between 24 February 2010 and 25 August 2010, by paying it in advance in January and February 2010. The respondents submitted that these payments are evidenced in six receipts in the respondents' bundle. The respondent submitted that in the description column alongside the words 'weekly rent', the six receipts show a monthly, rather than a weekly date for which the rent was paid.
However, the Tribunal did not accept the respondents' interpretation of the six receipts as the receipts show weekly amounts of rent paid in all other respects. The Tribunal accepted the applicant's explanation as to how the error occurred on the six receipts which showed a monthly, rather than a weekly date for which the rent was paid.
Further, the Tribunal was satisfied that the applicant had correctly calculated the amount of rent outstanding. Accordingly, the applicant's application is successful.
Below is an edited and revised version of the reasons for decision of the Tribunal which has been taken from the transcript of proceedings of the decision and the oral reasons for decision given on 8 July 2011.
Background
By way of background, the respondents have lived in the Coogee Beach Holiday Park (park) since July 2002 on a siteonly basis. They live on Site 196 in the park and the respondents have previously paid rent in the past in cash, one week in advance, usually. The respondents are longstay tenants pursuant to an agreement, as they have an agreement for tenancy for three months or longer. Therefore, they come within the terms of the Residential Parks (LongStay Tenants) Act 2006 (WA) (RP Act).
The applicant is a park operator and it issued a notice of termination under s 39(1)(a) of the RP Act on the respondents and that notice was dated 4 May 2011. The notice sought the payment of $3,820.29 and related to rent outstanding between 24 February 2010 and 25 August 2010. The notice requested that vacant possession be given by the respondents by 14 May 2011.
The respondents, Mrs Bosch and Ms Bosch, did not pay the amount outstanding by 14 May 2011 nor did they vacate the site. As at the date of the hearing, the amount of $3,820.29 in rent has not been paid, and is still outstanding, and Ms Bosch and Mrs Bosch are still living on the site.
Application in the Tribunal
On 23 May 2011, the applicant lodged an application with the Tribunal, seeking the payment of all outstanding rent arrears. The matter was listed for directions on 2 June 2011. However, as the applicant was unable to attend on that day, the directions were then relisted for 16 June 2011 with a hearing on that day as well. On 8 June 2011, the applicant provided a bundle of documents in support of its application including that the applicant wants the outstanding rent paid. If the respondents refuse to pay, then the applicant seeks an order for vacation of the site.
The respondents attended the directions hearing on 16 June 2011 by telephone and said that they would provide the Tribunal with documents which show that they do not owe the $3,820.29 as claimed by the applicant. The respondents were ordered to provide these documents to the Tribunal and to the applicant, and they did this on 28 June 2011.
On 8 July 2011, the parties attended the Tribunal in person and gave evidence. Mr Glossop gave evidence on behalf of his employer, the applicant. The respondents both gave evidence before the Tribunal.
Tribunal's power
Under the RP Act, the Tribunal has power under s 62(4)(d) to order payment of an amount payable under a longstay agreement.
Applicant's contentions
The applicant's case is that there was no rent paid by the respondents between 24 February 2010 and 25 August 2010 as per its records at the park, the statement that it has provided and the spreadsheet. A statement showing the charges, payments and balance was provided by the applicant.
A spreadsheet, which Mr Glossop told the Tribunal in his evidence, created by the applicant's finance department presented a summary of the payments that had been made. That document shows that from 21 February 2010, weekly rent was not paid until 25 August 2010 when $151.40 was paid and, as of 25 August 2010, the balance owing by the respondents was $3,820.29.
However, the applicant acknowledges and accepts that the six receipts submitted by the respondents shown in their bundle of documents as document numbers 11, 12, 14, 16, 17 and 18 do contain one error and that is in relation to the dates which are under the description column. The dates in that column indicate that, for example, in relation to the document number 18 that the respondents provided:
•18 February 2010 receipt.
•Description: weekly rent (and then goes on to give a monthly date) 28 July 2010 to 28 August 2010.
•Then alongside the charge it says $145 and shows the payment as $145.
•Shows a zero balance.
In the applicant's submission, the monthly dates which are shown alongside the weekly rent in the description column are incorrect. The inclusion of a monthly date, rather than a weekly date came about due to a software error arising from the use of the applicant's computer package. The software used by the applicant in the caravan park is known as the Reservation Management System (RMS Software). The RMS Software requires the manager of the caravan park, to un-tick a box in relation to the period for which the rent was paid. According to the applicant, the manager of the caravan park did not untick the box in relation to the period which the rent relates to and so it defaulted to a monthly period on six of the respondents' receipts. However, the applicant submits that all of the other information on the six receipts is consistent with the payment of weekly rent, for example, the description is actually 'weekly rent' and weekly rent amounts are shown on the receipts.
Respondents' contentions
The respondents' case as outlined in their written submissions and oral evidence before the Tribunal is that they paid the rent in cash in advance as follows:
•Mrs Bosch claims that, on 7 January 2010, she paid $580 in cash at the caravan park. The receipt in relation to this payment is document number 11 in the respondents' bundle of documents. The receipt for the payment made on 7 January 2010 shows a payment of $145 and a balance of zero. The description column describes it as being weekly rent and there is a date alongside the words 'weekly rent', which shows '30/01/10 - 28/02/10'.
•The second payment in this period which Mrs Bosch claims that she made was on 14 January 2010. Again, Mrs Bosch claimed in her evidence that she paid $580 in cash to the applicant. This is receipt number 12 in the respondents' bundle of documents dated 14 January 2010. It shows weekly rent and a payment of $145.
•On 28 January 2010, Mrs Bosch said in her evidence that she paid two months rent in advance and that was $1,060 in cash, and the date of 28 January corresponds with receipt number 14 in the respondents' bundle of documents and that receipt shows a payment of $145, not the $1,060 Mrs Bosch claimed.
•Mrs Bosch then claimed that on 5 February 2010 she paid $580 in cash in advance and that corresponds to the receipt dated 5 February 2010, which is number 16 in the respondents' bundle of documents.
•On 12 February, Mrs Bosch said that she paid $580 in cash. The receipt for 12 February 2010, which is document number 17 in the respondents' bundle, shows a payment of $145 cash.
•Mrs Bosch claims that on 18 February 2010 she made a cash payment of $580 in relation to her rent and that corresponds to document number 18 in the respondents' bundle, which shows a payment of $145.
Mrs Bosch claims that she did not look at the above six receipts from the applicant at the time that she received them because she was under quite a lot of stress in relation to issues relating to her neighbour within the park. That issue was causing her a lot of concern and affecting her health in January and February 2010.
Mrs Bosch claimed in her evidence that the payments were made in cash to the applicant and that the cash was taken from her safe and earned from her business. Mrs Bosch claimed that due to the six advanced payments of rent that she had made in January 2010 and February 2011, that they did not have any rent outstanding until after 25 August 2010.
Tribunal's consideration - Do Mrs Bosch and Ms Bosch owe any rent to the applicant for the period between 24 February 2010 and 25 August 2010?
The Tribunal will now consider if, as a matter of fact, Mrs Bosch and Ms Bosch owed rent to the applicant between 24 February 2010 and 25 August 2010.
The Tribunal notes that the six receipts show the charge is for a weekly amount of rent, which is $145, and the payments on the receipts show that $145 was paid.
The information on the above six receipts, in relation to the two dates following the description as 'weekly rent' (which seem to have been interpreted by the respondents to mean that they had paid their rent until those dates) in the Tribunal's view is incidental information, which is inconsistent with the remainder of the information on the receipts. This is because under the description column, it is accurately described as weekly rent and the amount of $145, being the weekly charge, is indicated as being the weekly rental amount and the payment is noted as $145. Also, the balance is shown correctly on the receipts and, in relation to receipt number 18, is shown as nil. That is, there is no credit on the receipt which indicates that the rent was paid in advance.
Having considered all of the evidence in relation to the payments, including the documents provided by the parties and the oral evidence, the Tribunal does not accept that the respondent, Mrs Bosch, made the payments of $580 in cash on 7 January 2010, 14 January 2010, 5 February 2010, 12 February 2010 and 18 February 2010 or a payment of $1,060 on 28 January 2010 as she claimed at the hearing. The reasons for this finding by the Tribunal is that her claim these rent payments were made, came very late in the day and it has been raised for the first time at the Tribunal hearing. General allegations have been made previously by the respondents saying that they did not think they were in default. However, the respondents have never specified, before the Tribunal hearing on 8 July 2011, exactly how they thought that they were up to date with their rent.
Further, no receipts have been provided in relation to the six payments which reflect the larger amounts claimed to have been paid to the applicant. The receipts are for amounts of $145 and not $580. Nor have the respondents' claims to have made five payments of $580, and one payment of $1,060, been supported or corroborated satisfactorily in any other way.
The respondents are asking the Tribunal to accept that they paid the $580 in cash, when all of the contemporaneous documents, documents that were created at the same time as the payments happened, namely the six receipts, state otherwise. In fact, the documents which were made at the time of the payments, namely the six receipts, actually support the applicant's position. The documents all indicate that those six payments were not made in the amounts claimed by the respondents; that, in fact, payments of only $145 were made at the various times in relation to the six payments and not $580 or $1,060 as claimed by the respondents.
The documentary proof, as far as the Tribunal is concerned, is heavily in favour of the applicant, in terms of the receipts and documents that have been provided. The respondents have not been able to account for, or show any payment of rent in the period between 24 February 2010 and 25 August 2010.
Having considered all of the evidence that is before the Tribunal, the Tribunal is satisfied that the respondents have not paid rent in accordance with the longstay agreement between 24 February 2010 and 25 August 2010. Further, the Tribunal accepts that the respondents do owe the applicant rent of $3,820.29 which accrued between 24 February 2010 and 25 August 2010, as calculated and claimed by the applicant.
Accordingly, the applicant's application is successful.
Order
The Tribunal orders that:
1.The respondents to pay to the applicant the sum of $3,820.29, in respect of rent not paid, by close of business on 8 August 2011, pursuant to s 62(4)(d) of the Residential Parks (Long-stay Tenants) Act 2006 (WA).
I certify that this and the preceding [30] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS L WARD, MEMBER
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