BROADVIEW NOMINEES PTY LTD TRADING AS FREMANTLE VILLAGE and WHALLEY
[2015] WASAT 75
•6 JULY 2015
BROADVIEW NOMINEES PTY LTD TRADING AS FREMANTLE VILLAGE and WHALLEY [2015] WASAT 75
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2015] WASAT 75 | |
| 06/07/2015 | |||
| RESIDENTIAL PARKS (LONG-STAY TENANTS) ACT 2006 (WA) | |||
| Case No: | CC:364/2015 | 2 JUNE 2015 | |
| Coram: | MS K WHITNEY (MEMBER) | 2/06/15 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | BROADVIEW NOMINEES PTY LTD TRADING AS FREMANTLE VILLAGE EDWARD WHALLEY |
Catchwords: | Longstay tenant Terms of longstay agreement not made in accordance with the Residential Parks (Longstay Tenants) Act 2006 (WA) Default notice Compliance with s 40(2) s 40(4) of the Residential Parks (Longstay Tenants) Act 2006 (WA) Breach of longstay agreement Whether breach such as to justify terminating longstay agreement |
Legislation: | Residential Parks (Long-stay Tenants) Act 2006 (WA), s 3, s 5(1), s 5(2), s 7(3), s 32(1), s 32(2), s 40, s 62, s 62(4)(k), s 68 State Administrative Tribunal Act 2004 (WA), s 15 |
Case References: | Nil |
Summary | The applicant sought an order terminating a longstay agreement with the respondent and requiring vacant possession of the premises pursuant to s 68(2) of the Residential Parks (Long-stay Tenants) Act 2006 (WA). The Tribunal found that the applicant failed to give the respondent the default notice at least 14 days prior to the date specified in the default notice as the date on or before which the breach must be remedied as required by s 40(2) and s 40(3) of the Residential Parks (Long-stay Tenants) Act 2006. Accordingly, the Tribunal found that neither the default notice nor the notice of termination complied with s 68(4) and could not support an application pursuant to s 68(2) of the Residential Parks (Long-stay Tenants) Act 2006. The Tribunal also found in any event that the respondent did not breach the longstay agreement as alleged by the applicant and, if he had, the breach was not such as to justify terminating the longstay agreement. The application was dismissed pursuant to s 62(4)(k) of the Residential Parks (Long-stay Tenants) Act 2006.,The Tribunal's reasons, taken from the transcript and edited in minor respects, were as follows. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : RESIDENTIAL PARKS (LONG-STAY TENANTS) ACT 2006 (WA) CITATION : BROADVIEW NOMINEES PTY LTD TRADING AS FREMANTLE VILLAGE and WHALLEY [2015] WASAT 75 MEMBER : MS K WHITNEY (MEMBER) HEARD : 2 JUNE 2015 DELIVERED : 2 JUNE 2015 PUBLISHED : 6 JULY 2015 FILE NO/S : CC 364 of 2015 BETWEEN : BROADVIEW NOMINEES PTY LTD TRADING AS FREMANTLE VILLAGE
- Applicant
AND
EDWARD WHALLEY
Respondent
Catchwords:
Longstay tenant Terms of longstay agreement not made in accordance with the Residential Parks (Longstay Tenants) Act 2006 (WA) Default notice Compliance with s 40(2) s 40(4) of the Residential Parks (Longstay Tenants) Act 2006 (WA) Breach of longstay agreement Whether breach such as to justify terminating longstay agreement
Legislation:
Residential Parks (Long-stay Tenants) Act 2006 (WA), s 3, s 5(1), s 5(2), s 7(3), s 32(1), s 32(2), s 40, s 62, s 62(4)(k), s 68
State Administrative Tribunal Act 2004 (WA), s 15
Result:
Application dismissed
Summary of Tribunal's decision:
The applicant sought an order terminating a longstay agreement with the respondent and requiring vacant possession of the premises pursuant to s 68(2) of the Residential Parks (Long-stay Tenants) Act 2006 (WA). The Tribunal found that the applicant failed to give the respondent the default notice at least 14 days prior to the date specified in the default notice as the date on or before which the breach must be remedied as required by s 40(2) and s 40(3) of the Residential Parks (Long-stay Tenants) Act 2006. Accordingly, the Tribunal found that neither the default notice nor the notice of termination complied with s 68(4) and could not support an application pursuant to s 68(2) of the Residential Parks (Long-stay Tenants) Act 2006. The Tribunal also found in any event that the respondent did not breach the longstay agreement as alleged by the applicant and, if he had, the breach was not such as to justify terminating the longstay agreement. The application was dismissed pursuant to s 62(4)(k) of the Residential Parks (Long-stay Tenants) Act 2006.
The Tribunal's reasons, taken from the transcript and edited in minor respects, were as follows.
Category: B
Representation:
Counsel:
Applicant : Mr M Kennedy
Respondent : In Person
Solicitors:
Applicant : N/A
Respondent : N/A
Case(s) referred to in decision(s):
Nil
Introduction
1 This application was heard by the Tribunal on 2 June 2015. An oral decision and reasons were delivered at the conclusion of the hearing, and orders were made dismissing the application. The following reasons for decision are an edited version of the transcript of oral reasons delivered by the Tribunal on 2 June 2015.
The application
2 Mr Michael Kennedy, manager of Fremantle Village caravan park and accommodation village in South Fremantle, lodged an application in the Tribunal dated 12 March 2015 against Mr Edward Whalley (respondent) seeking an order terminating a long-stay agreement with the respondent and requiring the respondent to give vacant possession of the premises pursuant to s 68(2) of the Residential Parks (Long-stay) Tenants Act 2006 (WA) (RP Act). At the hearing on 2 June 2015, Mr Kennedy applied to substitute as the applicant Broadview Nominees Pty Ltd trading as Fremantle Village (applicant).
Proceedings in the Tribunal
3 The application was listed for a directions hearing on 8 April 2015, at which the matter was referred to mediation. As the parties were not able to resolve the matter at mediation, on 8 May 2015 the parties were ordered to file copies of all documents and submissions they wished to rely on at the final hearing by 14 May 2015 (for the applicant) and by 21 May 2015 (for the respondent).
4 The application was listed for a final hearing on 2 June 2015.
Issues
1) Whether the respondent is a long-stay tenant within the meaning of the RP Act.
2) Whether the Tribunal is satisfied that the respondent has breached the long-stay agreement.
3) If so, whether the Tribunal is satisfied that the breach is, in all the circumstances, such as to justify terminating the agreement.
The hearing
5 At the hearing, the Tribunal had before it the application dated 12 March 2015 (application) supported by the following documents:
i) a scheduled form 'default notice termination for other breach of agreement' dated 17 February 2015 (default notice);
ii) a scheduled form 'notice of termination by park operator for other breach of agreement' dated 3 March 2015 (notice of termination);
iii) an unsigned 'site-only agreement', purporting to be between the applicant and the respondent, commencing 22 July 2014 (the unsigned agreement);
iv) correspondence from the applicant's manager, Mr Kennedy, to the respondent dated 10, 21, and 28 January and 9 February 2015; and
v) undated correspondence from the respondent to the applicant's manager.
6 The respondent relies on the correspondence between the parties referred to above, and the following documents:
i) an undated Fremantle Village tourist site registration form for ensuite 26B signed by the respondent (tourist site registration form) with a 'general information sheet' printed on the reverse;
ii) a notification of determination of interim order dated 11 February 2015; and
iii) the respondent's email to the Tribunal dated 27 May 2015.
The facts
The long-stay agreement
7 The parties agreed that the respondent commenced residing at site 26B of Fremantle Village (applicant's park) in about April 26 2014, after having resided in a temporary site at the applicant's park for about a week.
8 Although the respondent completed a tourist site registration form which indicated that the 'on-site cabin is for tourist purposes and it is not intended for long stays', it is undisputed that the applicant has resided at site 26B continuously since at least May 2014. The respondent's evidence was that he told the receptionist at the applicant's park that he wanted a 'permanent site' and intended to reside there indefinitely. The applicant called no evidence to dispute this, and the applicant's manager gave evidence to the effect that the applicant's policy was to deal with all tenants as 'tourists' unless they were on site for more than 90 days.
9 Other than the tourist site registration form, there was no written agreement between the parties. The respondent paid rent in the amount of $248 per week plus power and water to the applicant on a fortnightly basis and was required to give two weeks' notice to vacate.
10 By letter dated 10 January 2015, the applicant's manager wrote to the respondent requiring that he vacate the premises by the following day:
Due to the situation Thursday night and previous situations I have no option but to ask you to leave Fremantle Village. I require you to be out by 5pm Sunday 11th January.
11 When the respondent failed to vacate the premises, the applicant's manager wrote to the respondent on 21 January 2015 to the effect that if the respondent did not leave by 25 January 2015, 'I will have no option but to get the police involved as you will be trespassing'.
12 Further correspondence from the applicant's manager to the respondent dated 28 January 2015 informed the respondent that the applicant had 'decided to terminate your agreement':
At this stage, management feels that there is no resolution to the situation and the only outcome is for you to vacate your site as stated in your Notice of Termination for Other Breach of Agreement form received on the 27th January.
13 The Tribunal was not provided with a copy of the Notice of Termination for Other Breach of Agreement form dated 27 January 2015 referred to in the 28 January 2015 correspondence, or any default notice preceding it.
14 On 9 February 2015, the applicant's manager wrote to the respondent to the effect that the respondent could remain a resident of the park if, among other things, he signed a site only periodic agreement and moved to another site 'as chosen by Fremantle Village'. The letter further provided:
You will need to be relocated to the new site by Sunday 15th of February. Failure to comply with the above conditions will result in termination of this agreement and you will be evicted.
- The respondent declined to relocate to the new site chosen by the applicant.
Default notice
15 On 17 February 2015, the applicant prepared a default notice in the scheduled form. It asserts:
The resident was asked to relocate to another site in the park [pursuant to clause 24 of] the Periodic site-only agreement. The park operator does reserve the right to reposition the tenant['s] relocatable home to a comparable site in the Park if necessary.
16 The default notice provides that the 'breach' may be remedied by the respondent moving 'to either site 8A or 7B' by 3 March 2015. The respondent gave evidence that he did not recall being given the default notice. The applicant's manager gave evidence that he delivered the notice to the respondent on or about 19 February 2015. The Tribunal accepts the evidence given by the applicant's manager that he delivered the notice to the respondent on or about 19 February 2015.
Notice of termination
17 On 3 March 2015, the applicant issued a notice of termination in the scheduled form. It refers to the default notice (incorrectly referred to as being dated 15 February 2015) and asserts:
The resident was asked to relocate to another site in the park [pursuant to clause 24 of] the Periodic site-only agreement. The park operator does reserve the right to reposition the tenant's relocatable home to a comparable site in the park if necessary. The resident has refused to move.
- The notice of termination demanded vacant possession by 12 March 2015.
Jurisdiction
18 The applicant's manager lodged an application in the Tribunal on 12 March 2015 for an order terminating a long-stay agreement with the respondent and requiring the respondent to give vacant possession of the premises pursuant to s 68(2) of the RP Act. The application was supported by the unsigned agreement.
19 Section 68(2) of the RP Act confers on the Tribunal jurisdiction to make:
(a) an order terminating the agreement; and
(b) an order requiring the long-stay tenant to give vacant possession of the premises to the park operator.
20 Section 68(1) of the RP Act provides that s 68 applies where:
(a) a park operator has given a notice of termination to a long-stay tenant (except a notice of termination under section 39) …; and
(b) the tenant does not give vacant possession of the agreed premises to the park operator on the specified day.
21 It is not in issue in the proceeding that the applicant is the park operator as that term is defined in the glossary to the RP Act: s 3 of the RP Act.
22 The respondent is a long-stay tenant within the meaning of the RP Act if he is 'the grantee of a right of occupancy under a long-stay agreement': s 3 of the RP Act. A long-stay agreement is defined in s 5(1) of the RP Act as a residential park tenancy agreement:
(a) for a fixed term of 3 months or longer; or
(b) for a periodic tenancy that continues for 3 months or longer,
other than an agreement entered into for the purpose of -
(c) conferring on an individual the right to occupy a site or other park premises in a residential park for a holiday; …
23 Section 5(2) of the RP Act provides:
For the purposes of subsection (1), a residential park tenancy agreement conferring a right to occupy a site or other park premises for a fixed term of 3 months or longer is taken, in the absence of proof to the contrary, not to have been entered into for the purpose of conferring a right to occupy the site or premises for a holiday.
24 It was not in issue that:
• despite having initially completed a tourist site registration form, the respondent had been a tenant at Fremantle Village for more than three months prior to January 2015 when the dispute first arose;
• the applicant granted the respondent a right of occupancy over site 26B at the applicant's park with a relocatable home provided by the respondenton the basis of an agreement that the respondent was a fortnightly periodic tenant; and
• from at least July 2014, the respondenthad agreed to pay the applicant a weekly amount of $248 rent plus utility charges.
25 Although not in the form prescribed by the RP Act, or in writing at all, the agreement between the parties meets the definition of a long-stay agreement as defined in s 5(1) of the RP Act and the glossary. Relevantly, s 7(3) of the RP Act provides:
From the end of the period of 3 months after a periodic long-stay agreement which was not made in compliance with this Act was made until the agreement is terminated or a new agreement is made under subsection (1)(a) this Act applies to and in respect of the long-stay agreement to the extent that it can be applied, as if the agreement had been made in accordance with this Act.
26 The Tribunal therefore concludes that:
• the parties are parties to a long-stay agreement within the meaning of that term provided for in the RP Act;
• the applicant is the park operator within the meaning of that term as provided for in the RP Act; and
• the respondent is the long-stay tenant within the meaning of that term as provided for in the RP Act for the purposes of s 68 of the RP Act.
27 As s 68 of the RP Act confers jurisdiction on the Tribunal to make orders for vacant possession of premises that are the subject of a long-stay agreement, this application falls within the Tribunal's original jurisdiction: s 15 of the State Administrative Tribunal Act 2004 (WA).
The law
28 Section 68(1) of the RP Act applies where:
(a) a park operator has given a notice of termination to a long-stay tenant (except a notice of termination under section 39) …; and
(b) the tenant does not give vacant possession of the agreed premises to the park operator on the specified day.
29 Section 40 of the RP Act sets out the process for issuing a notice of termination:
(1) If a long-stay tenant breaches a term of the long-stay agreement (except a term for the payment of rent) the park operator may give a default notice to the tenant.
(2) The default notice must -
(a) describe the breach and state when it occurred; and
(b) specify a day on or before which the breach must be remedied; and
(c) tell the long-stay tenant that, if the breach is not remedied on or before the specified day, the park operator is entitled to terminate the agreement under this Act; and
(d) comply with section 37.
(3) The day specified in the default notice must be at least 14 days after the day on which the notice is given to the long-stay tenant.
(4) If the breach is not remedied on or before the day specified in the default notice or within any further time agreed between the park operator and the long-stay tenant, the park operator may give a notice of termination to the long-stay tenant.
(5) The notice of termination must -
(a) state the grounds for giving the notice; and
(b) specify the day on or before which the park operator requires the long-stay tenant to give vacant possession of the agreed premises to the park operator; and
(c) comply with section 38.
(6) The day specified in the notice of termination must be at least 7 days after the day on which the notice was given to the long-stay tenant.
(7) The day specified in the notice of termination may be -
(a) a day earlier than the last day of the fixed term of a fixed term tenancy; or
(b) a day earlier than the last day of a period of a periodic tenancy.
The State Administrative Tribunal may make the orders if a notice of termination was given in accordance with this Act and -
(a) where the notice was given on the grounds that the long-stay tenant has breached the long-stay agreement - the State Administrative Tribunal is satisfied that the grounds are made out and that the breach is in all the circumstances such as to justify terminating the agreement[.]
The Tribunal's consideration
Whether the notice of termination was given in accordance with the RP Act
31 The applicant's evidence was that its manager delivered the default notice to the respondent on or about 19 February 2015. In calculating the time period provided for in s 40(3) of the RP Act, the day on which the default notice was given is excluded: s 61(1)(b) of the Interpretation Act 1984 (WA). It follows that if the default notice was given to the respondent on or about 19 February 2015, the day specified in the default notice on or before which the breach must be remedied (3 March 2015) was only 12 days after the day on which the notice was given, rather than the minimum 14 days. On the evidence before the Tribunal, the Tribunal is not satisfied that the default notice complies with the requirements of s 40(2) and s 40(3) of the RP Act.
32 Section 40(4) of the RP Act permits the park operator to issue a notice of termination only upon the failure by the tenant to remedy a breach identified in the breach notice. A valid default notice is a precondition to a valid termination notice. As the default notice issued by the applicant failed to comply with the requirements of the RP Act, the Tribunal finds that it was incapable of supporting a valid notice of termination under s 40(4) of the RP Act. The Tribunal therefore finds that the notice of termination was not given in accordance with the RP Act as required by s 68(4) of the RP Act and cannot support an application pursuant to s 68(2) of the RP Act.
33 In light of this finding, the application must fail. Nevertheless, having heard the parties' submissions on the remaining issues, the Tribunal will make findings and reasons on these issues in any event.
Whether the Tribunal is satisfied that the respondent breached the long-stay agreement
34 The default notice alleges that the respondent breached the long-stay agreement by refusing to move from site 26B to another site in the applicant's park (namely, site 8A or site 7B). The applicant alleges that by clause 24 of its 'periodic site-only agreement', it reserves the right to reposition a tenant's relocatable home to a comparable site in the park if necessary (relocation clause). The 'periodic site-only agreement' referred to by the applicant is the unsigned agreement accompanying the application. Whether the respondent breached the long-stay agreement by refusing to move from site 26B to another site in the applicant's park will depend on the terms of the long-stay agreement.
35 The applicant's manager submitted that the terms of the long-stay agreement entered into between the applicant and the respondent are as set out in the unsigned agreement. The applicant's manager gave evidence to the effect that the unsigned agreement contains the standard terms of all of the applicant's long-stay agreements, and that the applicant considered that such terms would automatically apply to any tenants who resided in the park for more than 90 days.
36 However, the applicant's manager acknowledged that the respondent never signed the agreement, and that he had no evidence of any attempts to get the respondent to sign such an agreement until about February 2015. Accordingly, the Tribunal finds that it is not an agreement made in compliance with the RP Act. Nevertheless, for the reasons set out at [24] [26] above, the Tribunal finds that at all times after July 2014, there was a periodic long-stay agreement between the applicant and the respondent which was not made in compliance with the RP Act. The RP Act 'applies to and in respect of the long-stay agreement to the extent that it can be applied, as if the agreement had been made in accordance with [the RP] Act': s 7(3) of the RP Act.
37 Division 4 of the RP Act provides for the terms of long-stay agreements. Section 32(1) provides that 'Schedule 1 applies with respect to the terms of long-stay agreements'. Section 32(2) provides that certain of the provisions in Sch 1 may be excluded, modified or restricted.
38 Schedule 1 does not contain a provision which permits a park operator to require repositioning of a relocatable home. In the absence of a specific agreement between the parties that such a provision applies, it is not a term of the long-stay agreement.
39 The respondent gave evidence that he never agreed to the terms set out in the unsigned agreement. The applicant's manager submitted that the terms of the unsigned agreement applied to the respondent automatically once he had resided in the park for more than 90 days. The applicant's manager was unable to provide any legal basis for this submission. He conceded that the document was not signed by the respondent, and had not been prepared until February 2015. On the evidence before it, the Tribunal is not satisfied that the respondent agreed to the terms of the unsigned agreement.
40 As the applicant did not provide evidence that the relocation clause was a term of the applicant's agreement with the respondent, the Tribunal finds that the relocation clause was not a term of the agreement. There was no other basis alleged in support of the applicant's requirement that the respondent comply with its request to relocate.
41 In the absence of such an agreement, the Tribunal finds that it would have been impossible for the respondent to have breached the long-stay agreement by his refusal to move to a different site.
Whether the Tribunal is satisfied that the breach is, in all the circumstances, such as to justify terminating the agreement
42 Even if the Tribunal was satisfied that there had been a breach of the agreement by the respondent's refusal to move, the Tribunal would not be minded, in the circumstances as presented, to consider this type of breach to be one which would justify termination of the agreement. The Tribunal notes that the applicant presented no credible evidence of any legitimate reason why the respondent ought to move, and no reason why his failure to do so justified terminating the agreement.
Conclusion
43 For these reasons, the Tribunal finds that:
• the respondent is a long-stay tenant within the meaning of the RP Act;
• the respondent did not breach the long-stay agreement between the parties by refusing to relocate to another site as demanded by the applicant as this was not a term of the long-stay agreement; and
• in the circumstances as presented to the Tribunal, the Tribunal would not have considered a refusal to move to another site to be sufficient breach to justify terminating the long-stay agreement in any event.
44 Accordingly, the Tribunal refuses the applicant's application pursuant to s 68(2) of the RP Act for termination of the long-stay agreement and vacant possession of the site leased by the respondent (site 26B). The proceeding is dismissed.
Orders
45 For these reasons the Tribunal orders:
1. That the name of the applicant be substituted from Mr Michael Kennedy to Broadview Nominees Pty Ltd trading as Fremantle Village.
2. The applicant's application for an order terminating a long-stay agreement with the respondent and requiring the respondent to give vacant possession of the premises to the park operator pursuant to s 68(2) of the Residential Parks (Long-stay Tenants) Act 2006 (WA) is refused.
3. The application is dismissed pursuant to s 62(4)(k) of the Residential Parks (Long-stay Tenants) Act 2006 (WA).
I certify that this and the preceding [45] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS K WHITNEY, MEMBER
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