| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : RESIDENTIAL PARKS (LONG-STAY TENANTS) ACT 2006 (WA) CITATION : CAIN and APC PARKS PTY LTD [2011] WASAT 151 MEMBER : MS L WARD (MEMBER) HEARD : 6 SEPTEMBER 2011 DELIVERED : 6 SEPTEMBER 2011 FILE NO/S : CC 1347 of 2011 CC 1365 of 2011
CC 1366 of 2011
BETWEEN : FRANK CAIN Applicant
AND
APC PARKS PTY LTD
Respondent
Catchwords: Residential park Whether termination of longstay agreement without grounds justified Park being redeveloped in part All tenants to be offered shortterm stay agreements Circumstances which constitute justification Legislation: Interpretation Act 1984(WA), s 75, s 76
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Residential Parks (Longstay Tenants) Act 2006 (WA), s 33, s 38, s 39(4)(a), s 42, s 42(3)(b), s 46, s 62, s 62(2), s 62(2)(b), s 66, s 67, s 68, s 71B, s 91
Residential Parks (Long-stay Tenants) Regulations 2007 (WA), reg 13 Result: Applicant's application unsuccessful
Respondent's application successful Category: B
Representation: Counsel:
Applicant : Self-represented
Respondent : Mr Sneddon
Solicitors:
Applicant : Self-represented
Respondent : N/A
Case(s) referred to in decision(s):
Braham v Evans & Anor [2007] WASAT 124
Howe and Kelmscott Caravan Park [2010] WASAT 148
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REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision 1 Mr Frank Cain, the applicant, is a longstay periodic tenant pursuant to a siteonly agreement at the Black Rock Tourist Park in South Hedland in the north-west of Western Australia. The park operator, APC Parks Pty Ltd, gave Mr Cain 180 days' notice of termination of the agreement. 2 Mr Cain applied to the Tribunal under s 62(2) of the Residential Parks (LongStay Tenants) Act 2006 (WA). Mr Cain’s application is CC 1347 of 2011. Mr Cain sought an order in effect setting aside the notice of termination and also seeking compensation under s 46 of the Act. 3 In response the park operator lodged applications CC 1365 of 2011 and CC 1366 of 2011. The park operator seeks vacant possession of site 125 of Black Rock Tourist Park in South Hedland, which is Mr Cain's site. The park operator sought vacant possession on two grounds, namely: the 180day notice which was given on 3 March 2011 or in the alternative, on the ground of the applicant not paying his rent. 4 For the reasons set out below the Tribunal was satisfied that: • the notice of termination without grounds issued under s 42 of the Act does comply with the requirements in s 38 of the Act and reg 13 of the Residential Parks (Longstay Tenants) Regulations 2007 (WA); • the notice of termination had been 'given' under s 42(3)(b) of the Act irrespective of whether Mr Cain had received it or not; and • terminating the agreement is justified in all the circumstances as required by s 68(4)(b) of the Act as the park is undergoing redevelopment in part and is moving to operate as more of a tourist park rather than longterm accommodation. 5 Accordingly, application CC 1365 of 2011 was successful and the applicant was required to give vacant possession of site 125 in the Black Rock Tourist Park by 5pm on 16 September 2011. 6 The other applications, namely, CC 1347 of 2011 and CC 1366 of 2011 were dismissed by the Tribunal. (Page 4)
7 The Tribunal's reasons for the above decisions have been taken from the transcript and edited in minor respects for the sake of clarity and are set out below.
Introduction 8 Mr Frank Cain (applicant) is a long-stay periodic tenant pursuant to a siteonly agreement at the Black Rock Tourist Park in South Hedland. The park operator, APC Parks Pty Ltd (park operator), gave the applicant 180 days' notice of termination of the agreement. 9 The applicant applied to the Tribunal under s 62(2) of the Residential Parks (LongStay Tenants) Act 2006 (WA) (Act). The applicant sought an order in effect setting aside the notice of termination and also seeking compensation under s 46 of the Act. 10 In response the park operator lodged separate applications seeking vacant possession of site 125 of Black Rock Tourist Park in South Hedland, which is the applicant's site. The park operator sought vacant possession on two grounds, namely: the 180day notice which was given on 3 March 2011 or in the alternative, on the ground of the applicant not paying his rent. 11 The park operator applied under s 71B the Act for an order terminating the longstay agreement. However, given the orders sought by the park operator, the Tribunal considers that the application ought to be made under s 68(2) of the Act. That is for an order terminating the agreement and an order for the long-stay tenant to give vacant possession of the premises to the park operator. Accordingly, the Tribunal will consider the application as one under s 68(2) of the Act as it had given a notice of termination to the applicant, a longstay tenant, under s 42 of the Act. 12 The issues that the Tribunal has to determine are: (Page 5)
3) If so, then is the Tribunal satisfied that terminating the agreement is justified in all the circumstances as required by s 68(4)(b) of the Act?
Proceedings in the Tribunal 13 The applicant lives in South Hedland. Mr Sneddon is the group accountant for the respondent and he is based in Adelaide. Throughout these proceedings both parties attended the Tribunal by telephone at all times. 14 Application CC 1347 of 2011, which is the applicant’s application, first came before the Tribunal on 2 September 2011 for directions. At that time very few documents were before the Tribunal beyond a copy of the handwritten submissions the applicant had made in relation to an earlier Tribunal application, namely CC 584 of 2011. The applicant requested that his application be listed urgently as he said that 'everyone was being kicked out of the park and that his power had been cut off'. Given the lack of relevant documentation before the Tribunal, for example: no notice of default or termination given by the park operator, the matter was adjourned for further directions and a hearing on 6 September 2011. 15 On 2 September 2011 the park operator undertook to get the applicant's electricity reconnected to his site pending the outcome of the applicant's application. Also on 2 September 2011 certain orders were made by the Tribunal including that the applicant was requested to file documents in support of his application. The applicant's documents were received by the Tribunal in the hearing room at the start of the hearing on 6 September 2011. The applicant said that he had been given some assistance from a lawyer in getting the documents together. The applicant said that the lawyer was not available to appear at the hearing. 16 Following the directions hearing on 2 September 2011 the park operator filed applications CC 1365 and CC 1366 of 2011 seeking vacant possession of the applicant's site. The park operator provided 13 pages of documents with the applications including, relevantly, the following: (Page 6)
3) Notice of Termination for Nonpayment of Rent Default Notice Issued, dated 24 August 2011. 17 All three applications came before the Tribunal on 6 September 2011 for further direction and given the urgency of the matters a hearing. In the course of those directions the following issues were raised with the parties: • firstly, in relation to the application CC 1347 of 2011, the basis on which the applicant seeks compensation under s 46 of the Act. Section 46 refers to fixedterm longstay tenants; and • secondly, the validity of the park operator's Default Notice for Nonpayment of Rent dated 3 August 2011 in relation to the time given for the rent to be paid under s 39(4)(a). The notice appears only to give seven clear days rather than the 14 days required under the Act; and • thirdly, whether or not the park operator gave the applicant at least 180 days after the day on which the Notice of Termination Without Grounds was given. In this case the Tribunal notes that the applicant says he never got the Notice of Termination Without Grounds. 18 The parties were given the opportunity to consider the above issues, obtain whatever documents in support and obtain legal advice on the morning of 6 September 2011. By consent the matters were adjourned until 2pm on 6 September 2011 for final hearing. 19 At the resumption of the hearing on 6 September 2011 the park operator provided by facsimile the following documents in support of the Notice of Termination Without Grounds having been given on 3 March 2011, namely, two statutory declarations received by facsimile in the Tribunal: (Page 7)
eviction as I was at Frank Cain's at that time on 3 March. I left soon after as Frank was very upset'. 20 The park operator also indicated that they would not be pursuing an order for vacant possession based on the Default Notice for Nonpayment of Rent. 21 The applicant stated that he did maintain his application for compensation under the Act. 22 The Tribunal's consideration of the evidence before it and its reasons for decision in each of the three applications before it are set out below.
Issue 1: Application CC 1365 of 2011 park operator seeking vacant possession of site 125 23 In relation to the park operator's application CC 1365 of 2011, the Tribunal is satisfied based on all of the information before it that the Notice of Termination Without Grounds was given in accordance with the Act. Further, the Tribunal is satisfied on the material presented to it that terminating the parties' agreement is justified in all of the circumstances. 24 Accordingly, the Tribunal orders that the parties' longstay agreement be terminated and that the applicant is ordered to give vacant possession of the leased premises to the park operator. 25 It is not disputed by the parties that the applicant has a periodic longstay agreement with the park operator relating to site 125 at the Black Rock Tourist Park in South Hedland. The applicant says that he has been a resident in the park for about one and a half years. He says that he pays his rent one month in advance and it is a siteonly agreement. He admits that he is now a bit behind in his rent. 26 The park operator issued a notice under s 42 of the Act. The notice is headed 'Notice Terminating Without Grounds'. The notice is dated 3 March 2011 and it requires the applicant to give vacant possession of site 125 by 31 August 2011. 27 The applicant has not given vacant possession of site 125 on 31 August 2011 and has refused to give such vacant possession. Under s 42 of the Act a park operator is required to give at least 60 days' notice of vacant possession for an onsite home agreement and at least 180 days' notice in respect of a siteonly agreement. In this case the applicant has a siteonly agreement and the park operator has given a notice which is intended to be at least 180 days after the date of the notice. (Page 8)
28 There is a factual dispute between the parties as to the date on which the notice was given. The applicant says that he was never given the Notice of Termination Without Grounds. The park operator says the notice was given to him on 3 March 2011. The park operator has provided two statutory declarations in support of these facts to the Tribunal. 29 Section 42(3)(b) of the Act requires that the notice merely has to be 'given'. Section 91 of the Act also deals with the service of documents: 30 The Tribunal notes that in s 91 of the Act it states it 'may be' given to the person personally. The statutory declaration from Mr Sean Power says that he did serve the applicant personally in that he 'delivered a 180day notice to Frank on 3 March, mid-morning'. The second statutory declaration from Ms Ilya Rglover says that she saw Mr Power deliver a notice because she was at Mr Cain's at the time and left soon after as he was very upset. Those two statutory declarations seem to indicate very clearly that the notices were personally delivered to the applicant on that day. 31 The Tribunal notes that the applicant disputes the contents of the statutory declarations and that he has consistently disputed receiving the notice of termination on 3 March 2011. 32 However, the Tribunal also notes that 3 March 2011 is now over 180 days ago and it is possible that the applicant may have forgotten that he was served with the notice. The Tribunal also places some reliance on the application to the Tribunal which was made by the applicant and signed by him on 28 April 2011, a copy of which was provided to the Tribunal by the park operator in this matter. The previous application states that the applicant wants to be given the opportunity to provide 180 days as per longstay residential parks and suggested that the order does not comply with s 42 of the Act. The Tribunal attaches some weight to the fact that the applicant certainly was aware of a notice for termination being served on him some time before 28 April 2011. Although, the Tribunal understands that there have been perhaps several notices served on the applicant in relation to this matter. (Page 9)
33 However, based on all of the evidence before the Tribunal, it is satisfied that the notice was given to the applicant as required under the Act. The Tribunal also notes that under s 76 of the Interpretation Act 1984 (WA) that in relation to the service of documents generally, where it says 'give, deliver or send or any other similar word or expression without directing it to be served in a particular manner' which the Tribunal finds is the case under this Act. 34 The Tribunal also notes in relation to this issue that there is a difference between getting a notice and receiving a notice. The Tribunal only has to be satisfied under the Act currently before it that the notice was 'given'. The Tribunal is satisfied, based on the statutory declarations and the interpretation placed under the Interpretation Act 1984, that the notice was given. 35 There is perhaps an issue in relation to whether the notice of termination was received or not. However, the Tribunal is satisfied that it was given. An earlier decision of the Tribunal Braham v Evans & Anor [2007] WASAT 124 (Braham) at [52] to [60], is relevant to the issue of whether a failure to receive means that a document has not been served. In Braham the Tribunal considered in a building matter whether service of a preliminary notice by registered post had occurred where delivery of the notice was refused. In that case the Tribunal found that notice had been given because it had been sent, irrespective of whether or not it had been refused at the other end. 36 In this case the Tribunal is satisfied that based on the statutory declarations and the evidence of Mr Sneddon, that the notice of termination was given to the applicant by the park operator irrespective of whether the applicant recalls or acknowledges receiving it. 37 For those reasons the Tribunal finds that the notice of termination was given to the applicant as required under the Act. 38 The Tribunal also finds that the applicant was given at least 180 days after the notice of termination was given to vacate site 125. The Tribunal accepts that the notice of termination was given on 3 March 2011 and that it was at least 180 days from 4 March 2011 to, but not including, 31 August 2011. 39 The Tribunal is also satisfied that the notice has been provided in terms of the form required under s 38 of the Act and reg 13 of the Regulations. (Page 10)
Is termination of the agreement justified as required by s 68(4)(b) of the Act? 40 Section 68(4)(b) of the Act requires the Tribunal to be satisfied that terminating the agreement is justified in all the circumstances. In effect, this requires the Tribunal to look at what the underlying motive is for the termination (see: Howe and Kelmscott Caravan Park [2010] WASAT 148 (Howe)). 41 The applicant says that the termination of the agreement is not justified because the problem is with management, that is the park operator and not with him. The applicant readily acknowledges that he has made a number of complaints to Consumer Protection, the police and to this Tribunal in a previous application in relation to the way that the Black Rock Tourist Park is managed. 42 As a result of these complaints, the Tribunal is required to consider s 68(5)(a) and s 68(7) of the Act. The Tribunal needs to satisfy itself whether the park operator was wholly or partly motivated to give the notice by the fact that the longstay tenant had complained to a public authority about the park operator's conduct or had taken steps to secure an enforcement of his rights as a tenant under the agreement. Section 68(7) of the Act states: Where the park operator gave the notice of termination to the longstay tenant, and the State Administrative Tribunal is satisfied that the tenant had, within the 6 months before the notice was given to him or her, complained to a public authority about the park operator's conduct in relation to the agreement … 43 Mr Sneddon said in response to s 68(5)(a) and s 68(7) of the Act that he was aware that Consumer Affairs in Karratha had called him twice in relation to some complaints. As far as Mr Sneddon is aware, the complaints had not gone any further than calls being made to him. Mr Sneddon said in his evidence to the Tribunal that he was not bothered by any complaints to a regulatory authority. He said it was not the ethos of how the respondent’s business operated itself to be bothered or to be motivated to issue grounds of termination where somebody has made a complaint. 44 Mr Sneddon's evidence was also that notices of termination were issued to all residents in the Black Rock Tourist Park. He said that the park operator did this as it had plans to run the park more as a tourist park. The park operator planned to have a small development on part of the site which would involve a chaletstyle development in the front of the park. Mr Sneddon acknowledged that there was a shortage of longterm (Page 11)
accommodation for people in South Hedland. However, he also said that the local Shire was keen for the park to be developed in a way to cater for tourists and shortterm accommodation; that is, tenancies of three months or less. Mr Sneddon said that 160 of the caravan sites had been converted to shortterm stay tenancies. Mr Sneddon said that those shortterm stay tenancies may be renewed on an ongoing basis, but the possibility remained that it was open to the park operator for that not to occur. Mr Sneddon also said that he considered that the termination would be justified in all the circumstances as he wanted the park to be able to have a fresh start, so that is why all the tenancies in relation to the 170 sites were all terminated. To his knowledge about 160 of those sites remain with the same tenants on a shortterm basis. 45 Mr Sneddon said, speaking generally in relation to the other 10 or so sites, that the people on those sites (one of them being the applicant) were not conducive to the harmony with everyone in the park. He was aware of situations where apprehended violence orders had been sought by various parties, where police had been involved, and there was some antisocial conduct within the park in relation to some tenants. He said there was a group of people contributing to disharmony in the park. He said that he had been personally threatened by the applicant in relation to a bomb and threats to sort him out. It was also of concern to the park operator that the applicant was now behind in his rent and it was concerned in relation to his ability to comply with the park rules generally. 46 The applicant in response said that he feels that he has been bullied by management. He acknowledges he is now a bit behind in his rent. He says that he is not a noisy tenant, that he works for himself and that the managers have been harassing him for months. The applicant says that he has had his power turned off. He also says that he has not had access for his vehicle to the caravan park boom gates using his swipe card. He says that he does not agree to move out of the park because he has been bullied by management and because there are no other caravan parks in town. The applicant says that it is very hard to get accommodation in South Hedland, and that he did not get the notice of termination. 47 The Tribunal accepts that there is quite a history to the relationship between the management of the park and the applicant since the park operator took over the management of the park in or about July 2010. However, notwithstanding that background the Tribunal is satisfied, based on the evidence before it and in particular the evidence given by Mr Sneddon, that the issuing of the Notice of Termination Without Grounds was not wholly or partly motivated due to the applicant having (Page 12)
complained to a public authority about the park operator's conduct. It is satisfied of that fact based on the manner in which Mr Sneddon gave his evidence. He came across as being objective and impartial. He is the group accountant in a group of companies. He certainly did not appear to the Tribunal to have any malice or an 'axe to grind' with the applicant. 48 Further, the evidence of Mr Sneddon is that all tenants in the park were served with notices of termination. There is no suggestion that the service of notices of termination on all tenants within the park, including the applicant, was in any way partly or wholly motivated by any complaints made to Consumer Protection. While the applicant has made complaints to Consumer Protection and other agencies, he has not been treated any differently to other tenants within the park in relation to the giving of the Notice of Termination Without Grounds. 49 Accordingly, the Tribunal is not satisfied that the park operator was wholly or partly motivated by any complaints made. This is in circumstances where all tenants in the park were served with the notices and there is no suggestion that all tenants have made complaints to the relevant agencies. 50 Mr Sneddon explained that the reason for issuing the notices of termination to all tenants included the fact that the park operator intends to run the park more in line with it being a tourist park rather than being a place for longterm accommodation for people living in the area of South Hedland.
Conclusion 51 For those reasons the Tribunal is satisfied that the terminating of the agreement is justified in all the circumstances that are before it. Obviously this is something that will be difficult for the applicant to accept but he needs to understand that the Act endeavours to achieve a balance between the interests of the park owners, APC Parks Pty Ltd, and the interests of tenants (see: Howe). 52 The park owners obviously own the land for the purposes of profit, in terms of the asset valuation increasing and also in terms of deriving income from the land from tenants. It is clear from the reading of the Act as a whole that, subject to the procedural controls which are set out in the Act, it is not intended to curtail the right of the owners to develop the land in any way that they see fit, subject to obvious planning controls and things of that nature. (Page 13)
53 So having weighed all of the evidence that is before the Tribunal, it accepts that the underlying motivation for the Notice of Termination Without Grounds in this case is the intention of the park to run itself more as a tourist park with the majority of tenants on shortterm lease arrangements, rather than longterm lease arrangements which the applicant has had in the past. 54 Accordingly, the park operator's application CC 1347 of 2011to terminate the parties' agreement is justified in all of the circumstances and the application is successful.
Issue 2: Application CC 1347 of 2011 the applicant seeking compensation and setting aside the Notice of Termination Without Grounds 55 In relation to application CC 1347 of 2011 insofar as it relates to compensation under the Act, it is dismissed. This is because s 46 of the Act refers only to a fixedterm agreement. A fixedterm agreement is one that specifies a period of time that the agreement runs for, for example, one year. A periodic agreement is one with a specific starting day, but does not specify an ending day. A periodic agreement can last for an indefinite time. 56 The Tribunal finds that the applicant had a periodic tenancy under the Act. So for the purposes of the Act no compensation can be awarded to the applicant as a periodic tenant. 57 In relation to the application to set aside the Notice of Termination Without Grounds, for the reasons given below in relation to the park operator's application CC 1365 of 2011, the Tribunal finds that the Notice of Termination Without Grounds is valid and therefore that aspect of the applicant's application is also dismissed.
Issue 3: Application CC 1366 of 2011 58 Application CC 1366 of 2011 contains a previous application to the Tribunal by the applicant as part of the documents provided by the park operator. Due to the presence of the previous application to the Tribunal a new application seems to have been created in error by the Tribunal. 59 Accordingly, the matter appears to lack substance in terms of it not being a separate and current application to the Tribunal and it is struck out. Although reliance has been placed by the Tribunal on the documents provided in that file as they form part of the documents provided by the park operator in support of application CC 1365 of 2011. (Page 14)
Orders 60 The Tribunal orders that:
In relation to application CC 1347 of 2011 Cain and APC Parks Pty Ltd 1. For the reasons already given, the application is dismissed as a period longstay tenant does not have any statutory right to compensation under s 46 of the Residential Parks (Longstay Tenants) Act 2006 (WA).
In relation to application CC 1365 of 2011 APC Parks Pty Ltd and Cain 1. On final hearing and for the reasons already given, the Tribunal, being satisfied that Notice of Termination Without Grounds was given in accordance with the Residential Parks (Long-stay Tenants) Act 2006 (WA), and being satisfied on the material presented to the Tribunal that terminating the parties' agreement is justified in all of the circumstances, orders that the parties' longstay agreement be terminated and the respondent tenant is hereby ordered to give vacant possession of the leased premises to the park operator. 2. In accordance with s 68(8) of the Residential Parks (Long-stay Tenants) Act 2006 (WA) these orders take effect on 13 September 2011 . 3. By reason of hardship to the tenant, pursuant to s 68(6) of the Residential Parks (Long-stay Tenants) Act 2006 (WA) the Tribunal suspends the operation of the orders for three days, which suspension is to run from 12 September 2011, which has the effect of the applicant having to give vacant possession of site 125 by 5pm on Friday, 16 September 2011. 4. Between the date of this order and 16 September 2011, the park operator undertakes to allow the applicant to have access through the boom gates and to reinstate his electricity supply.
In relation to application CC 1366 of 2011 Cain and APC Parks Pty Ltd 1. For the reasons already given, the application appears to lack substance and is dismissed. (Page 15)
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