BATAVIA COAST CARAVAN PARK and THOMAS

[2012] WASAT 88

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   COMMERCIAL & CIVIL

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

CITATION:   BATAVIA COAST CARAVAN PARK and THOMAS [2012] WASAT 88

MEMBER:   MS C WALLACE (MEMBER)

HEARD:   23 APRIL 2012

DELIVERED          :   23 APRIL 2012

PUBLISHED           :  3 MAY 2012

FILE NO/S:   CC 384 of 2012

BETWEEN:   BATAVIA COAST CARAVAN PARK

Applicant

AND

PHILLIPA THOMAS
Respondent

Catchwords:

Residential park ­ Whether termination of long­stay agreement without grounds was justified ­ Whether a genuine intent to redevelop the park existed

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

Respondent:     Self­represented

Solicitors:

Applicant:     Self-represented

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 respondent is a long­stay tenant to a site­only agreement.  The caravan park operator gave the respondent 180 days' notice of termination of the agreement.  The respondent 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 respondent 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 respondent was showing a disregard for the caravan park rules and for the proper management of the caravan park.  The respondent denied that she was continually breaching caravan park rules and asserted that allegations against her in this regard had been fabricated by the applicant in order to evict her.

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 by the respondent, the Tribunal found that there was little evidence to support that contention.  In addition, the Tribunal accepted that some complaints of alleged breaches of caravan park rules were falsely obtained by the applicant in order to fabricate circumstances upon which termination of the respondent's agreement could be made.  Thus, the Tribunal found that no circumstances existed to justify the applicant issuing the termination notice to the respondent and 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 applicant is seeking from the Tribunal an order terminating the agreement with the respondent and an order that she give vacant possession of the premises to the caravan park operator.

The long­stay agreement and notice of termination

1. The respondent's long­stay agreement is a periodic site­only agreement dated 17 April 2009 relating to site 78 at the Batavia Coast Caravan Park; thus, the respondent has resided at the caravan park for approximately three years.

2. The respondent was 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 respondent 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 was 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 what information was required and necessary in order for the Tribunal to properly consider and determine its application.

3. From the papers filed by the parties, and the respondent's submissions and evidence provided at the hearing (the Tribunal notes that the applicant decided belatedly not to participate), 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 by Ms Thomas and her visitors; and

   2)a planned redevelopment of the caravan park.

5. Ms Thomas' position was that the alleged breaches of the caravan park rules were fabricated by the caravan park manager, Ms Appelbee, in an attempt to evict her, and that there are no genuine circumstances which justified the decision to terminate the agreement.

Consideration of the evidence

1. The Tribunal will firstly turn to the alleged disregard for caravan park rules and alleged breaches of those rules by Ms Thomas and her guests.

2009

1. A number of letters were sent to Ms Thomas in her first year at the caravan park relating to various issues, including her dog being seen without a lead, vehicles parking in unauthorised car bays, her partner staying overnight without notice and staying in excess of a week's period, rent being overdue and unacceptable behaviour by visitors.

2. There was also a general letter sent in this period to all tenants which addressed concerns regarding the growing of marijuana plants.  Ms Appelbee submitted in her affidavit filed with the Tribunal that this letter was directed to Ms Thomas, although not personally addressed to Ms Thomas, as she believed the plants were hers.  This alleged presence of marijuana plants did not appear to be reported to the Police.  No charges have been laid against Ms Thomas in this regard and Ms Thomas denies the allegation.

3. Ms Thomas disputed the allegations generally.  She gave evidence that she was being bullied and targeted by Ms Appelbee, and felt intimidated by her.  The written and oral evidence of Ms Richardson, a prior resident of the caravan park, supported this position.

4. Ms Thomas disputed the allegation of rent arrears and gave evidence that her receipts indicated that she was not in arrears.  Only one default notice was issued during this period regarding rent, which, on 31 August 2009, was in the amount of $132 for the period 26 August 2009 to 2 September 2009.  Rent is required to be paid two weeks in advance.  Thus, in any event, rent arrears did not appear to be a significant issue at this time.

2010

1. Very little seems to have occurred in 2010.  One default notice was issued by the applicant to the respondent on 18 July 2010 relating to various things, including Ms Thomas' conduct on the premises, caravan park rules, quiet enjoyment and behaviour.  Ms Thomas gave oral evidence that this letter related to one incident involving a verbal altercation between her previous partner and Ms Appelbee.  Ms Thomas stated that it was one incident and was not, in her evidence, repeated.

2011

1. Last year, the applicant alleged various issues.  There was a default notice issued on 12 September in respect of Ms Thomas' dog being observed without a lead, a matter which she denied.  The applicant also asserted issues regarding Ms Thomas' son and his partner's behaviour; however, the Tribunal notes that they were allowed to return to the caravan park and now reside there, which indicates those issues were, ultimately, not deemed to be of a serious nature by the applicant.

2. Various default notices were issued regarding rent arrears in early 2011.  Ms Thomas disputed that she was in arrears and took the matter to the Department of Commerce, Consumer Protection, which wrote a letter to the parties dated 25 March 2011, a copy of which has been filed with the Tribunal.  The Department of Commerce, Consumer Protection appeared to have satisfactorily conciliated the matter.  The letter noted that, in regard to rental payments, the records of both parties differed and could not be reconciled.   The letter stated that the parties agreed to resolve the dispute by deleting all previous credit and debit amounts and starting with fresh rental payments from 15 March 2011.  No further default notices in relation to rent were issued to Ms Thomas before the termination notice was issued.

3. Other issues raised by the application in relation to the 2011 period included the allegation that Ms Thomas failed to keep her cat enclosed and that it urinated in the children's sandpit.  Ms Appelbee has asserted, in her documents filed with the Tribunal, that Ms Richardson reported this incident.  Ms Thomas denied the incident and Ms Richardson gave oral evidence at the hearing, which is accepted, that she made a complaint in relation to children urinating in the sandpit, but not in relation to a cat.

4. Ms Appelbee has also alleged, in the documents filed with the Tribunal, altercations between Ms Thomas and other long­stay residents occurring in 2011.  Ms Thomas denied those allegations other than in relation to Ms Jennings, in respect of whom she has stated that Ms Jennings initiated and created those issues.  The Tribunal notes that there were no written reports in relation to these alleged altercations, and no Police reports were made or filed to substantiate any of these claims.

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 the caravan park can justify issuing a termination notice.  The written evidence filed by the applicant asserts not a redevelopment plan as such, but a remodelling of the manner in which the caravan park operates by, it appears, increasing the number of cabins with ensuites available for the tourist industry.

2. There was no documentation to support this alleged plan.  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 that 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, market surveys and the like.  These major business decisions do not occur in a vacuum, but, ordinarily, have a basis on which they are made to support a change in the business approach.  No such documentation was provided in relation to this matter and, without any such supporting evidence, the Tribunal does not find that there is currently a genuine proposal to redevelop the caravan park, or that that proposal was the reason for the termination of Ms Thomas' agreement.

3. In addition, this submission was made belatedly by the applicant after being directed to the Howe decision by the Tribunal which involved a redevelopment of a caravan park.  In addition, at the directions hearing of this matter on 29 March 2012, Ms Appelbee, for the applicant, explained that the reason for the termination was that 'we have continuous problems with behaviour and the acceptance of park rules'.  Ms Appelbee also informed the Tribunal on that occasion that 'it boils back to not following park rules when it comes to visitors and different things.  You get to the point where there's no more that you can do'.  There was no mention at that time of an additional, more significant reason for issuing the notice, such as redevelopment of the caravan park.  That has been raised belatedly and without any documentation to support it and, in such circumstances, the Tribunal does not accept the submission and will give it no weight.

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 a general disregard for the proper management of the caravan park.  In this regard, the Tribunal will not give weight to alleged rent arrears, as that matter was disputed by the respondent and conciliated by the Department of Commerce, Consumer Protection.  The Tribunal will also not give weight to alleged illegal drug activity, in relation to which Ms Thomas has never been charged or convicted.

2. The Tribunal is, therefore, left with conflicting evidence in relation to nuisance pets and alleged altercations.  In relation to these alleged circumstances, Ms Thomas denied those incidents and asserted that she had been bullied and intimidated by Ms Appelbee, and that Ms Appelbee had encouraged other tenants, such as Ms Richardson, to fabricate complaints against her.  She relied, in this regard, on a statutory declaration executed by Ms Richardson on 26 March 2012, stating that she had been approached by Ms Appelbee in mid 2011 and asked to make false complaints against Ms Thomas in relation to her dog.  Ms Richardson also stated in that document that she heard Ms Appelbee approaching other caravan park tenants and asking them to also make false complaints against Ms Thomas.  Ms Richardson attended the hearing and gave convincing corroborating oral evidence in this regard, which the Tribunal accepts.

3. In the circumstances, the Tribunal finds that the applicant, through Ms Appelbee, engaged in unacceptable behaviour by encouraging other residents at the caravan park to make false complaints against the respondent, such that the applicant would have a basis on which to issue a notice of termination.  Such circumstances cannot, of course, ever justify the issuing of a termination notice.  The Tribunal therefore finds that there were no circumstances justifying the termination of Ms Thomas' agreement, and the application is dismissed.

I certify that this and the preceding [29] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MS C WALLACE, MEMBER