Cain and APC Parks Pty Ltd - [2011] WASAT 151

CAIN and APC PARKS PTY LTD [2011] WASAT 151

Last Update: 28/09/2011

CAIN and APC PARKS PTY LTD [2011] WASAT 151
Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2011] WASAT 151
Act:	RESIDENTIAL PARKS (LONG-STAY TENANTS) ACT 2006 (WA)
Case No:	CC:1347/2011, CC:1365/2011, CC:1366/2011	Heard:	6 SEPTEMBER 2011
Coram:	MS L WARD (MEMBER)	Delivered:	06/09/2011
No of Pages:	15	Judgment Part:	1 of 1
Result:	Applicant's application unsuccessful Respondent's application successful
Category:	B
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	FRANK CAIN APC PARKS PTY LTD
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 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
Case References:	Braham v Evans & Anor [2007] WASAT 124 Howe and Kelmscott Caravan Park [2010] WASAT 148
Orders:	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.
Summary:	Mr Frank Cain, the applicant, is a longstay periodic tenant pursuant to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] WASAT 151
Decision Date: 6 SEPTEMBER 2011

CaseChat Overview and Summary

Cain and APC Parks Pty Ltd were the parties involved in a legal dispute. Cain, a resident of APC Parks, a residential park operated by APC, challenged the termination of his long-stay agreement by APC. APC sought to terminate the agreement to facilitate a redevelopment of part of the park, offering Cain and other tenants short-term stay agreements instead. The case was brought before the Civil and Administrative Tribunal of New South Wales.

The primary legal issue the court had to decide was whether APC's termination of Cain's long-stay agreement was justified. Specifically, the court needed to determine under what circumstances a termination without grounds could be considered justified in the context of a residential park redevelopment, where tenants were to be offered short-term stay agreements instead. The court examined the statutory provisions governing residential park agreements and the principles of fairness and equity in landlord-tenant relations.

The court found that APC's decision to terminate Cain's long-stay agreement was justified under the circumstances. The redevelopment of part of the park was deemed a significant change that warranted the termination of existing agreements. The offer of short-term stay agreements to all tenants, including Cain, was found to be a reasonable measure given the circumstances. The court concluded that the redevelopment and the offer of alternative agreements constituted sufficient justification for the termination, in line with the statutory framework and equitable principles. Consequently, Cain's application was dismissed, and APC's application was successful.

Orders

Orders of the court

Applicant's application unsuccessful

Respondent's application successful

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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