BATAVIA COAST CARAVAN PARK and HANSEL

[2012] WASAT 91

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   COMMERCIAL & CIVIL

ACT: RESIDENTIAL PARKS (LONG-STAY TENANTS) ACT 2006 (WA)

CITATION:   BATAVIA COAST CARAVAN PARK and HANSEL [2012] WASAT 91

MEMBER:   MS C WALLACE (MEMBER)

HEARD:   23 APRIL 2012

DELIVERED          :   23 APRIL 2012

PUBLISHED           :  3 MAY 2012

FILE NO/S:   CC 383 of 2012

BETWEEN:   BATAVIA COAST CARAVAN PARK

Applicant

AND

PAUL HANSEL
First Respondent

CARA MORRIS
Second Respondent

Catchwords:

Residential park ­ Whether termination of long­stay agreement without grounds was justified ­ Whether a genuine intent to redevelop the caravan park existed ­ Whether breaches of caravan park rules is sufficient grounds

Legislation:

Residential Parks (Long­Stay Tenants) Act 2006 (WA), s 42, s 68(2), s 68(4)(b)

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Applicant:     Self­represented

First Respondent          :     Self­represented

Second Respondent      :     Self­represented

Solicitors:

Applicant:     Self-represented

First Respondent          :     Self-represented

Second Respondent      :     Self-represented

Case(s) referred to in decision(s):

Howe and Kelmscott Caravan Park [2010] WASAT 148

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. The applicant is the owner and operator of the Batavia Coast Caravan Park.  The respondents are long­stay tenants to a site­only agreement.  The caravan park operator gave the respondents 180 days' notice of termination of their agreement.  The respondents did not vacate the site at the expiry of that period and, therefore, the applicant applied under s 68(2) of the Residential Parks (Long­Stay Tenants) Act 2006 (WA) for an order, in effect, that the respondents give vacant possession of the site to the applicant.

2. The applicant submitted that issuing the termination notice was justified in circumstances where the caravan park was being redeveloped, and where the respondents were showing a disregard for the caravan park rules and for the proper management of the caravan park.  The respondents denied that there had been serious and continuous breaches of caravan park rules and submitted that the notice of termination had been issued due to hostilities between the parties.

3. The Tribunal found that the applicant had no genuine intent to redevelop the caravan park at this time.  In relation to the alleged concerns regarding breaches of caravan park rules and/or antisocial behaviour by the respondents, the Tribunal found that there was insufficient evidence to support that any such behaviour was significant or continuous, or to the degree that it was affecting the proper operation of the caravan park.  The Tribunal found, on a balance of probabilities, that the notice of termination was issued due to hostilities between the parties and, therefore, it was not justified in those circumstances.  The application was therefore dismissed.

Introduction

1. This application was heard by the Tribunal on 23 April 2012.  An oral decision was delivered shortly following the conclusion of the hearing, and an order was made dismissing the application.

2. The following reasons for decision have been prepared from the transcript and have been subject only to minor editing to improve clarity of expression and for completeness.

The application

1. This is an application brought under s 68(2) of the Residential Parks (Long­Stay Tenants) Act 2006 (WA), which I will refer to as the 'Act', whereby the Batavia Coast Caravan Park (caravan park or applicant), is seeking from the Tribunal an order terminating the agreement with the Mr Hansel and Ms Morris (respondents), and an order that they give vacant possession of the premises to the caravan park operator.

The long­stay agreement and notice of termination

1. The residents' long­stay agreement is a periodic site­only agreement dated 1 April 2008 relating to site 45 at the Caravan Park.  Thus, the respondents appear to have resided at the caravan park for approximately four years, although they did state in oral evidence that they had resided at the caravan park a year or so longer.

2. The respondents were issued with a notice of termination without grounds, pursuant to s 42 of the Act.  The notice is dated 12 September 2011 and required vacant possession by 11 March 2012.  Under s 42 of the Act, the applicant was required to give at least 180 days' notice, and this provision has been complied with.  The respondents have remained in possession and, thus, the applicant has brought this application.

The issues and position of the parties

1. Pursuant to s 68(4)(b) of the Act, in deciding whether the Tribunal ought to make the orders sought by the applicant, it is required to be satisfied that terminating the agreement is justified in all the circumstances.

2. At the initial directions hearing, the Tribunal directed the applicant's attention to this provision of the Act and, also, to the decision of Howe and Kelmscott Caravan Park [2010] WASAT 148 (Howe), such that it could better understand the legal position in this regard.

3. From the papers filed by the parties, their submissions and the evidence provided at the hearing, it appeared that their positions were as follows.

4. The applicant contended that termination of the agreement was justified on two bases:

   1)an ongoing disregard for caravan park rules and breaches of those rules on a continuous basis by the respondents and their family; and

   2)a planned redevelopment of the caravan park.

5. The respondent's position was to dispute some of the allegations made against them and the significance of those allegations, and to submit that the termination, effectively, was due to hostilities between them and the caravan park manager, Ms Appelbee.

Consideration of the evidence

1. The Tribunal will, firstly, turn to consider the evidence regarding the alleged disregard for the caravan park rules.

2008

1. In the first year of residence, there appeared to be little evidence of any issues regarding breaching of caravan park rules by the respondents.  There was one letter sent by the applicant to the respondents regarding the need to ensure that the respondents' fence was a consistent colour with others at the caravan park, and in good condition, but otherwise there appeared to be no significant issues.

2009

1. Again, in 2009, there appeared to be little evidence of significant issues with regard to alleged breaches of caravan park rules and/or antisocial behaviour by the respondents.

2. In late 2009, a default notice was issued and a letter written to the respondents regarding parking in unallocated car bays, but otherwise, the relationship between the parties did not appear to be fractured.  Indeed, Mr Teakle, the caravan park owner and operator, wrote a letter of referral for the respondents dated 4 August 2009, stating that there were no problems concerning their tenancy.

2010

1. There was no documentary evidence filed with the Tribunal in respect of breaches of caravan park rules in 2010 by the respondents.  Given the previous practice of the applicant in issuing notices following breaches, the Tribunal therefore finds that there were no significant breaches by the respondents during this period.

2. Ms Appelbee gave oral evidence that there were issues, however, during this period when Mr Hansel allegedly threatened other tenants' lives, including his partner, Ms Morris, and asserted that there were altercations between them and another tenant, Mrs Adams.  The respondents admitted a falling out with Mrs Adams but stated that it was of a minor nature.  The matters were never reported to the Police and no letters were sent from the applicant to the respondents in relation to these concerns.

2011

1. In March 2011, two default notices were issued to the respondents, one in respect of an electricity bill and one in respect of $30 rent.  Those defaults appear minor in nature and are the first occasion that such notices appear to have been issued to the respondents.

2. Ms Appelbee gave evidence of other alleged incidents occurring during 2011, which included unruly or antisocial behaviour from the respondents' two children, aged three years and five years at the time, including urinating in a sandpit, trespassing in other tenants' units and damaging their property.  The respondents disputed some of these allegations and said they were not made aware of them, other than in relation to the sandpit issue.  The respondents were not issued with a default notice in respect of these matters, but they did state that they received one letter in general terms in relation to supervision of their children.  The respondents gave evidence that they did make significant endeavours to supervise their children, but, on some occasions, because the children were quite young, they were temporarily unsupervised from time to time.

3. Ms Appelbee also stated in her affidavit that Mr Hansel revved his vehicle during this period to hurry up a tourist who was in his way.  No letter or default notice was issued in relation to this alleged incident.

4. The applicant alleged further altercations in 2011 between the respondents and other tenants, including Ms Thomas and her son, which Ms Appelbee asserted related to drug selling.  The Police were not called and no report was made and, therefore, no charges were laid in respect of any of these alleged incidents.  The respondents denied them.  There were no statements from witnesses provided to the Tribunal, written or otherwise, to corroborate these allegations.  No letters were sent by the applicant to the respondents regarding these alleged incidents.

Redevelopment plans

1. The applicant asserts that it intends to redevelop the caravan park.  It is clear from the Howe decision that a genuine intent to redevelop a caravan park can justify issuing a termination notice.  The evidence given by Ms Appelbee was not of redevelopment plans as such, but a remodelling of the manner in which the caravan park would operate by reducing the number of permanent residents and increasing the number of cabins with ensuites available for tourists.  Ms Appelbee asserted that the caravan park generated more income from temporary tourist trade than long­stay permanent residents.

2. There was no documentary evidence to support this contention.  There was a letter filed with the Tribunal from Lifetime Accounting Services dated 13 April 2012, stating that a large investment had been made in the caravan park but turnover was reducing.  The letter stated that part of the solution to improve the business is to remove unsustainable tenants.  However, there was no documentary evidence one would expect to see if a major business decision had been made to improve the financial viability of the business; for example, financial analysis comparing profit derived from tourists versus permanent residents over the past few years, market surveys from tourists as to what attracted and detracted them to the caravan park and so forth.  These types of major business decisions do not occur in a vacuum, but, ordinarily, have a basis on which they are made to support a change in business approach.  No such documentation was provided in this matter and, without any such supporting evidence, the Tribunal does not find that there is a genuine proposal to redevelop the caravan park, or that that proposal was the reason for the termination of the respondents' agreement.

3. In addition, this submission was made belatedly by the applicant after being directed to the Howe decision by the Tribunal, which involved redevelopment of a caravan park.  At the directions hearing of this matter on 29 March 2012, Ms Appelbee, for the applicant, explained the reason for termination was due to 'a lot of issues … in regards to children, parking, visitors, basically the basic park rules, rental arrears, electricity arrears', and 'altercations that were going on between [the respondents] and another tenant' and in the end the applicant, therefore, decided to issue the termination notice.  There was no mention of an overarching, more significant reason in relation to a proposed redevelopment of the caravan park on that occasion.  The issue appeared to be an alleged continuous breach of caravan park rules and alleged antisocial behaviour.

Conclusion

1. In the absence of any genuine intent to redevelop the caravan park, the Tribunal must determine if the issuing of the notice was justified, due to the alleged constant breach of caravan park rules and disregard for the proper management of the caravan park.  In this regard, the Tribunal is therefore left with some minor sporadic default notices and some unsupported allegations of unruly and antisocial behaviour.  To the extent that the issues were significant or continuous, this has been refuted by the respondents.

2. The Tribunal struggles to accept the oral evidence of Ms Appelbee in relation to the significance of the alleged incidents of altercations and the like, in the absence of any corroborating evidence of any tenants' complaints; for example, witnesses giving statements, letters written to the respondents regarding this alleged behaviour, default notices in relation to the alleged behaviour, reports to Police, and the like.  The absence of any such corroborating evidence sways against a finding that such behaviour was of a serious concern or was occurring on an ongoing and regular basis, or that it was significantly affecting the general operation of the caravan park.

3. In addition, the Tribunal accepts that there is an antagonistic and hostile relationship between the parties, and finds that this has, potentially, resulted in the termination notice being issued.  The antagonism between the parties was clear in the terms in which Ms Appelbee wrote to the respondents on 31 July 2008, in relation to the allocation of an additional car bay to the respondents whilst Ms Morris was pregnant.  The letter stated 'this issue has raised the question as to what is more important to Mr Hansel, his tools or his baby????'.

4. In addition, the applicant filed a record of a conversation which allegedly took place between Ms Appelbee and Mr Hansel in April 2012, in which she asserted that she was intimidated by Mr Hansel, although no threats or the like are recorded as being made by Mr Hansel in that report.  However, again there is a clear indication, by the manner in which Ms Appelbee admits to speaking to Mr Hansel, which evidences her dislike for the respondents.  For example, Ms Appelbee reported that she told Mr Hansel that his partner, Ms Morris, was a liar once again.

5. In the absence of any other prohibitive evidence to explain the circumstances surrounding the termination of the respondents' agreement, the Tribunal therefore finds that it has been terminated due to hostilities which exist between the respondents and Ms Appelbee.  There was no evidence before the Tribunal suggesting that the animosity, in and of itself, which exists between the parties affected the general operation of the caravan park.  Accordingly, given that the Tribunal has found that that hostility is the probable underlying motivation for terminating the respondents' agreement, the Tribunal finds that the termination is not justified in the circumstances.  The Tribunal, therefore, will not make the orders sought and the application is dismissed.

I certify that this and the preceding [31] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MS C WALLACE, MEMBER