Dall and Tyson
[2016] WASAT 111
•13 SEPTEMBER 2016
DALL and TYSON [2016] WASAT 111
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2016] WASAT 111 | |
| 15/09/2016 | |||
| RESIDENTIAL PARKS (LONG-STAY TENANTS) ACT 2006 (WA) | |||
| Case No: | CC:932/2016 | 7 SEPTEMBER 2016 | |
| Coram: | MS K WHITNEY (MEMBER) | 13/09/16 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Application granted Longstay agreement terminated and vacant possession ordered | ||
| B | |||
| PDF Version |
| Parties: | WILLIAM DALL PATRICK TYSON |
Catchwords: | Residential park Whether termination of longstay agreement without grounds was justified Breakdown in relationship between tenant and park operator and other residents Balancing the rights of park operator and tenant Turns on facts |
Legislation: | Residential Parks (Long-Stay Tenants) Act 2006 (WA), s 3, s 5(1), s 34, s 38, s 42, s 68, s 68(4)(b), s 68(7) State Administrative Tribunal Act 2004 (WA), s 15 |
Case References: | Batavia Coast Caravan Park and Hansel [2012] WASAT 91 Batavia Coast Caravan Park and Thomas [2012] WASAT 88 Howe and Kelmscott Caravan Park [2010] WASAT 148 |
Summary | The applicant, the proprietor of the Panorama Caravan Park in Albany, applied to the Tribunal on 23 June 2016 for orders pursuant to s 68(2) of the Residential Parks (Longstay Tenants) Act 2006 (WA) terminating a longstay agreement with the respondent and seeking vacant possession of the premises. ,The applicant contended that the respondent's tenancy within the park was intolerable and the issues were unresolvable. This was because the respondent allegedly made excessive noise (by reason of his barking dog, noisy visitors, and shouting), was threatening and abusive to the applicant and other park residents, with such incidents requiring the intervention of police, and bothered the other park residents by the extent of the traffic coming and going from his premises. It was also alleged that he supplied drugs to another park resident on one occasion and that there was 'unusual activity' suggesting that the respondent was dealing drugs. ,The respondent contended that he was a quiet man who liked to be left alone, and that he had been 'stalked and harassed' by the applicant and his employees. He maintained that the applicant and his employees exaggerated or fabricated the allegations to provide a basis for the applicant's application. He conceded that the applicant's and his relationship had deteriorated over the years and that there was hostility between them. However, he maintained that this was not a sufficient basis to terminate his tenancy.,The Tribunal was not satisfied on the balance of probabilities that the respondent's noise levels, swearing generally, or his or his visitors' vehicle movements were sufficient to constitute an intolerable situation as alleged. Furthermore, the Tribunal was not satisfied on the balance of probabilities that the respondent's activities involved drug dealing.,Nevertheless, the Tribunal was satisfied on all the evidence that there had been an irreconcilable breakdown of the relationship between the respondent, the applicant and two remaining tenants. The Tribunal found that the conduct demonstrated a level of hostility which went well beyond the conduct described in cases cited by the respondent. For these reasons, the Tribunal was satisfied that terminating the agreement was justified in all the circumstances. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : RESIDENTIAL PARKS (LONG-STAY TENANTS) ACT 2006 (WA) CITATION : DALL and TYSON [2016] WASAT 111 MEMBER : MS K WHITNEY (MEMBER) HEARD : 7 SEPTEMBER 2016 DELIVERED : 13 SEPTEMBER 2016 PUBLISHED : 15 SEPTEMBER 2016 FILE NO/S : CC 932 of 2016 BETWEEN : WILLIAM DALL
- Applicant
AND
PATRICK TYSON
Respondent
Catchwords:
Residential park Whether termination of longstay agreement without grounds was justified Breakdown in relationship between tenant and park operator and other residents Balancing the rights of park operator and tenant Turns on facts
Legislation:
Residential Parks (Long-Stay Tenants) Act 2006 (WA), s 3, s 5(1), s 34, s 38, s 42, s 68, s 68(4)(b), s 68(7)
State Administrative Tribunal Act 2004 (WA), s 15
Result:
Application granted
Longstay agreement terminated and vacant possession ordered
Summary of Tribunal's decision:
The applicant, the proprietor of the Panorama Caravan Park in Albany, applied to the Tribunal on 23 June 2016 for orders pursuant to s 68(2) of the Residential Parks (Longstay Tenants) Act 2006 (WA) terminating a longstay agreement with the respondent and seeking vacant possession of the premises.
The applicant contended that the respondent's tenancy within the park was intolerable and the issues were unresolvable. This was because the respondent allegedly made excessive noise (by reason of his barking dog, noisy visitors, and shouting), was threatening and abusive to the applicant and other park residents, with such incidents requiring the intervention of police, and bothered the other park residents by the extent of the traffic coming and going from his premises. It was also alleged that he supplied drugs to another park resident on one occasion and that there was 'unusual activity' suggesting that the respondent was dealing drugs.
The respondent contended that he was a quiet man who liked to be left alone, and that he had been 'stalked and harassed' by the applicant and his employees. He maintained that the applicant and his employees exaggerated or fabricated the allegations to provide a basis for the applicant's application. He conceded that the applicant's and his relationship had deteriorated over the years and that there was hostility between them. However, he maintained that this was not a sufficient basis to terminate his tenancy.
The Tribunal was not satisfied on the balance of probabilities that the respondent's noise levels, swearing generally, or his or his visitors' vehicle movements were sufficient to constitute an intolerable situation as alleged. Furthermore, the Tribunal was not satisfied on the balance of probabilities that the respondent's activities involved drug dealing.
Nevertheless, the Tribunal was satisfied on all the evidence that there had been an irreconcilable breakdown of the relationship between the respondent, the applicant and two remaining tenants. The Tribunal found that the conduct demonstrated a level of hostility which went well beyond the conduct described in cases cited by the respondent. For these reasons, the Tribunal was satisfied that terminating the agreement was justified in all the circumstances.
Category: B
Representation:
Counsel:
Applicant : Ms C Smiddy-Brown
Respondent : Mr J Hogkinson
Solicitors:
Applicant : Albany Legal
Respondent : Haynes Robinson
Case(s) referred to in decision(s):
Batavia Coast Caravan Park and Hansel [2012] WASAT 91
Batavia Coast Caravan Park and Thomas [2012] WASAT 88
Howe and Kelmscott Caravan Park [2010] WASAT 148
Introduction
1 The Tribunal delivered oral reasons on 13 September 2016. The following reasons for decision are the oral reasons delivered by the Tribunal, subject to minor editing for clarity, style and inclusion of citations.
2 Mr William Dall (applicant), the proprietor of the Panorama Caravan Park in Albany, applied to the Tribunal on 23 June 2016 for orders pursuant to s 68(2) of the Residential Parks (Longstay Tenants) Act 2006 (WA) (RP Act) terminating a longstay agreement with Mr Patrick Tyson (respondent) and seeking vacant possession of the premises.
3 It is common ground that the longstay agreement between the applicant and respondent originated as follows. In 2009, Mr Francis Graham Tyson (the respondent's late father) entered into a fixedterm siteonly agreement with the applicant in respect of site 25 of the Panorama Caravan Park in Albany (the park) for the period commencing 15 April 2009 and ending on 15 April 2014 (the 2009 agreement).
4 Division 5 Special Terms of the 2009 agreement provided that:
If the tenant dies during the currency of this lease, the park operator agrees to substitute the tenant's son PATRICK FRANCIS TYSON as the tenant under this agreement if he so consents.
5 The parties accept that the respondent's late father died prior to 15 April 2014 and the respondent was accordingly substituted as tenant under the 2009 agreement. Although it was accepted between the parties that the 2009 agreement was a fixed-term siteonly agreement, that agreement in fact ended on 15 April 2014 and the respondent remained as a periodic tenant by agreement of the parties and by operation of s 3, s 5(1), and s 34 of the RP Act. The parties accept, and the Tribunal is satisfied on all the evidence, that the respondent is a longstay tenant within the meaning of the RP Act and the agreement between the parties is a periodic longstay agreement within the meaning of the RP Act, albeit on the same terms as those which applied prior to the termination of the 2009 agreement. The Tribunal will henceforth refer to the tenancy agreement between the applicant and the respondent as the periodic longstay agreement.
6 On 19 December 2015, the applicant served the respondent with two documents: a default notice termination for other breach of the agreement in respect of alleged failure to remove a dog from the caravan park and keep the premises in a reasonable state of repair (the breach default notice), and a notice of termination by park operator without grounds, demanding vacant possession by 20 June 2016 (the without grounds notice of termination).
7 On 5 January 2016, the applicant issued a notice of termination by park operator for other breach of agreement in respect of the alleged failure to remove a dog from the caravan park and keep the premises in a reasonable state of repair, demanding vacant possession by 13 January 2016 (the breach notice of termination). The breach notice of termination was the subject of an application to the Tribunal dated 15 January 2016 (matter CC 38 of 2016). That matter was dismissed by the Tribunal on 4 May 2016.
8 The without grounds notice of termination is the subject of the present application. The parties agree, and the Tribunal is satisfied on all the evidence, that applicant has given the without grounds notice of termination to the respondent in accordance with the requirements of the RP Act. Because the without grounds notice of termination in the present matter was given prior to the respondent's defence of matter number CC 38 of 2016, s 68(7) does not apply.
The hearing
9 This application was heard by the Tribunal on 2 and 5 September 2016. Both parties were legally represented. At the hearing, the Tribunal had before it the application dated 23 June 2016 (application) as well as the following documents:
i) a scheduled form 'notice of termination by park operator without grounds' dated 18 December 2015 (the without grounds notice of termination);
ii) a fixedterm site-only agreement between the applicant and Mr Francis Graham Tyson, commencing 15 April 2009 and terminating 15 April 2014 (the 2009 agreement);
iii) witness statement of Ms Roslyn Jeanette Robinson dated 2 August 2016;
iv) witness statement of Ms Debra Jean Wals dated 3 August 2016;
v) witness statement of Mr William Philip Dall dated 3 August 2016;
vi) respondent's statement of issues facts and contentions lodged 17 August 2016;
vii) witness statement of Mr Bradley Jared Duffield dated 23 July 2016;
viii) witness statement of Mr Patrick Francis Tyson dated 23 August 2016;
ix) witness statement of Mr Brian Ernest Mitchell dated 24 August 2016;
x) witness statement of Mr Jack Calguhoum Cooper dated 24 August 2016;
xi) witness statement of Mr Frank William Green dated 25 August 2016;
xii) witness statement of Mr Anthony Lawrence Jay dated 25 August 2016; and
xiii) witness statement of Mr Trevor Graham Atwell dated 2 September 2016.
10 Each of the witness statements was accepted as the witness's evidence in chief and all witnesses were crossexamined.
11 In crossexamination, Mr Atwell disputed the truth of the contents of his signed statement, refused to answer questions on crossexamination, and departed the crossexamination prematurely. For these reasons, the respondent consented to his witness statement being struck out. It has not been considered by the Tribunal.
12 Likewise, Mr Duffield disputed the accuracy of the contents of his signed statement in crossexamination, raising questions as to the accuracy of some of his evidence. This point will be discussed further below.
The relevant law
13 Section 68 of the RP Act confers jurisdiction on the Tribunal to make orders for vacant possession of premises that are the subject of a longstay agreement. This application falls within the Tribunal's original jurisdiction: s 15 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
14 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.
15 Section 68(2) of the RP Act provides that a park operator may apply to the Tribunal for:
(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.
16 Section 68(4)(b) of the RP Act provides that the Tribunal may make the orders if, where a notice of termination was given in accordance with the RP Act, and the notice was for any reason other than breach of the longstay agreement, the Tribunal is satisfied that terminating the agreement is justified in all of the circumstance.
17 Section 42(1) of the RP Act provides that a park operator may give a notice of termination to a longstay tenant to terminate a longstay agreement without grounds. In such circumstances, s 42(2) provides that the notice of termination must:
(a) state that the park operator intends to terminate the long-stay agreement under this section; 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.
18 Section 42(3) of the RP Act provides that a park operator must provide at least 180 days' notice for a siteonly agreement. Section 38 provides for other formalities of the notice of termination.
19 It is common ground between the parties that the without grounds notice of termination complied with the required formalities. It is also common ground that the respondent did not give vacant possession of the premises to the park operator by 20 June 2016. Accordingly, the only issue for determination by the Tribunal is whether the Tribunal is satisfied that terminating the agreement is justified in all the circumstances.
20 In Howe and Kelmscott Caravan Park [2010] WASAT 148 (Howe), Senior Member Raymond noted at [27] that the purpose of the requirement for termination to be justified in all of the circumstances is to 'provide a sensible balance between the rights of a park operator and that of a tenant. It prevents a park operator terminating an agreement on a mere whim.' Senior Member Raymond added that:
It is not appropriate to attempt to define what may constitute justification in all circumstances, but I will endeavour to apply that phrase to the circumstances of this particular case.
21 The Senior Member considered that in circumstances where the relevant incidents of conduct of the tenant were 'relatively trivial', he was not satisfied this was sufficient justification to terminate the longstay agreement.
It is not in issue that there is a degree of animosity between the parties. That arises from relatively minor incidents. There is nothing to suggest a breakdown in the relationship between the parties to such a degree that it affects in any way the operation of the park. Accordingly, if that was found to be the underlying motive for termination, I would not regard termination as being justified.
22 In Howe, the conduct in question was described as follows:
[11] Firstly, that there had been many minor incidents in which he [the long stay tenant] had been treated rudely and which reflected animosity held towards him by the [owners and operator of the park]. This, he said, was indicated by an incident which occurred some unspecified time ago when he stated that Mr [J], one of the owners and operator of the park, had reported complaints to him about what was referred to as a ruckus on a particular Saturday night.
[12] The [long stay tenant] stated that he had been on his own on that particular weekend and that the complaint could not have related to him as he had noone with whom to argue or to create any noise with. Further, that the notice of termination was given immediately after an altercation about the degree of contact which the [long stay tenant] had with visitors in the park.
[13] The respondent does not dispute that there is a degree of animosity between it and the applicant, but asserts that any lack of courtesy on its part has only been by way of a reaction to the applicant's abrupt manner.
23 In Batavia Coast Caravan Park and Thomas [2012] WASAT 88 (Thomas), Member Wallace applied the principles in Howe to allegations of conduct which the longstay tenant argued were fabricated by the park manager. The Tribunal found on the evidence that the park manager had in fact fabricated the evidence.
[29] In the circumstances, the Tribunal finds that the applicant, through the park manager, 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.
24 In Batavia Coast Caravan Park and Hansel [2012] WASAT 91 (Hansel), which was heard by Member Wallace on the same day and which involved the same park manager, Member Wallace applied the principles in Howe to the following allegations of conduct which were denied, and which (importantly, given the findings in Thomas) were uncorroborated by evidence before the Tribunal:
• that the longstay tenant had threatened other tenants (in circumstances where the alleged conduct had not been reported to police);
• that the longstay tenant's two children (aged 3 and 5) engaged in unruly or antisocial behaviour (including urinating in a sandpit, trespass, and vandalism);
• that the longstay tenant had 'revved his vehicle' once to 'hurry up' a tourist who was in his way'; and
• altercations arising from alleged 'drug selling' (in circumstances where the allegation had not been reported to police);
25 The Tribunal concluded as follows:
[27] [T]he 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.
[28] The Tribunal struggles to accept the oral evidence of [the park manager] 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.
[29] 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 [the park manager] 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????'.
[30] In addition, the applicant filed a record of a conversation which allegedly took place between [the park manager] 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 [the park manager] admits to speaking to Mr Hansel, which evidences her dislike for the respondents. For example, [the park manager] reported that she told Mr Hansel that his partner, Ms Morris, was a liar once again.
[31] In the absence of any other [probative] 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 [the park manager]. 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.
Applicant's contentions
26 The applicant contends that the respondent's tenancy within the park is intolerable and the issues are unresolvable. This is because the respondent allegedly makes excessive noise (by reason of his barking dog, noisy visitors, and shouting), is threatening and abusive to the applicant and other park residents, with such incidents requiring the intervention of police, and bothers the other park residents by the extent of the traffic coming and going from his premises. It was also alleged that he supplied drugs to another park resident on one occasion and that there is 'unusual activity' suggesting that the respondent is dealing drugs. The applicant and two residents of the park, Ms Robinson and Ms Wals gave evidence on behalf of the applicant.
Respondent's contentions
27 The respondent contends that he is a quiet man who likes to be left alone, and that he has been 'stalked and harassed' by the applicant and his employees. He maintains that the applicant and his employees have exaggerated or fabricated the allegations to provide a basis for the applicant's application. He contends that the applicant and Ms Robinson have made reports to the police without any reasonable basis. He concedes that the applicant's and his relationship has deteriorated over the years and there is hostility between them. However, he maintains that this is not a sufficient basis to terminate his tenancy. The respondent and one resident of the park (Mr Green), as well as four former park residents (Mr Jay, Mr Mitchell, Mr Cooper, and Mr Duffield) gave evidence on behalf of the applicant.
Findings and consideration
28 Significant evidence was tendered by the applicant and the respondent, some of which was directly in conflict. Accordingly, it is necessary to make findings about the relative credibility of the witnesses.
29 Mr Green impressed the Tribunal as a careful witness who was able to accurately support his evidence in crossexamination. For example, he was able to support his evidence that the respondent had three to four visitors whose cars came and went regularly with details as to the colour of the cars and who drove them. He was also willing to concede in crossexamination that despite the evidence in his statement that the applicant could be overbearing and intimidating, the applicant had also been 'very kind' to him in dealing with him concerning rental arrears and other issues.
30 Ms Robinson also impressed the Tribunal as a truthful witness. It was evident from her demeanour that she feared the respondent, and needed to be escorted to her vehicle after giving evidence. Ms Robinson gave evidence that by virtue of her employment over many years (which included employment in areas of mental health, child protection, the courts, as well as employment as a caretaker and as a manager of a video arcade) she was attuned to suspicious behaviour. Contrary to the respondent's contention that this rendered her overly suspicious, the Tribunal considered her employment experience enhanced the credibility of her evidence. Where Ms Robinson's evidence is in conflict with the respondent's, the Tribunal generally prefers her evidence to his.
31 The Tribunal also considered Ms Wals to be a truthful witness. Her candour was apparent in her admission to having obtained cannabis from the respondent. The Tribunal does not accept the respondent's contention that this admission makes her less reliable, or that her (recently acquired) role in performing odd jobs for the applicant in exchange for food and/or cigarettes adversely impacts upon her independence as a witness and overall credibility. Where Ms Wals' evidence is in conflict with the respondent's, the Tribunal generally prefers her evidence to his.
32 Both the applicant and the respondent presented as vague historians. Neither had a particularly good recall of details, such as the dates various events occurred. Nevertheless, the Tribunal accepts the applicant as a fundamentally credible witness. His candour was evident in his admission to having obtained capsicum spray for defensive purposes (although he noted he had been unaware it was illegal when he purchased it, as it had been available for sale in a shop) and having used it in self-defence against the respondent. He also appeared to be genuinely concerned for his own safety and that of his tenants because the respondent's behaviour was 'getting nastier and nastier'.
33 On the other hand, the Tribunal had concerns about the reliability of the respondent. He was agitated, jittered, and rocked during the delivery of his evidence. His speech became rapid, rambling, and somewhat incoherent as his agitation increased during crossexamination. Several times the Tribunal had to ask him to slow down. His evidence on crossexamination was at times inconsistent, and his interpretation of certain events did not seem to entirely accord with the admitted facts. For example, he insisted that the applicant had tried to prevent him from getting help during a mental breakdown at the park, despite conceding that the applicant had in fact telephoned for assistance from a specialist mental health team. Although the respondent admitted that during the breakdown he had attempted to ignite the floor of his annex with a lighter and an aerosol can, he refused to accept that he had engaged in behaviour that was potentially dangerous to other residents. Because of these concerns about the reliability of the respondent's evidence, the Tribunal generally prefers the evidence of the applicant and his witnesses to that of the respondent.
34 The Tribunal did not consider Mr Jay to be a credible witness. Mr Jay insisted that his tenancy at the park ended because the accommodation was 'uninhabitable' rather than because of non-payment of rent, but then conceded that when he moved to new accommodation on 15 December 2015, there were rental arrears which necessitated his partner remaining on the premises to 'work off' the debt through employment at the park. Furthermore, the Tribunal considered that Mr Jay's evidence in crossexamination as to what the applicant said at the altercation on 15 December 2015 (in particular, that the applicant was going to evict Mr Jay from the park) was inconsistent with Mr Jay's evidence that he had already moved out. This impacted upon the Tribunal's view of the credibility of Mr Jay's evidence, and where it conflicts with the applicant's evidence as to what was said and who was the aggressor at the altercation on 15 December 2015, the Tribunal prefers the evidence of the applicant.
35 Likewise, the Tribunal did not consider Mr Duffield to be a reliable witness. He denied that he had been asked in writing to leave the park because he vandalised the toilet block, bullied and intimidated a vulnerable resident, and because of a loud party, claiming he never received the letter. Rather, Mr Duffield insisted that his tenancy at the park ended because he was 'evicted' by members of the God's Garbage motorcycle gang on the direction of the applicant because he was the respondent's friend. Mr Duffield also denied that he was escorted from the premises by the police after he had been banned for vandalising the toilet block. He ultimately conceded that he had left the park of his own volition but that the police 'followed' him out. The Tribunal gives no weight whatsoever to paragraph 8 of Mr Duffield's statement, as Mr Duffield himself said in crossexamination that 'I didn't say that' and the statement was wrong. The Tribunal does not accept Mr Duffield's evidence that 'many times' he saw the applicant 'stalking' the respondent. On crossexamination, Mr Duffield conceded he had seen the applicant only on one occasion, patrolling the park at night with a bright light, at a time when the respondent was not at home.
36 The evidence of both Mr Mitchell and Mr Cooper that there was no unusual activity at the respondent's home and that the respondent was generally a quiet sort of person was undermined by the fact that both admitted that they did not live in close proximity to the respondent's site. As for the evidence concerning the extent of applicant's nocturnal activities, Mr Cooper accepted on crossexamination that on only one occasion had he seen the applicant drive around the park with a spotlight, which he conceded was 'fair enough' for a responsible park owner. Mr Mitchell also conceded he had only seen the applicant patrolling the park once or twice. Mr Cooper's evidence that the applicant refused to fix a lamp (which the applicant maintained had been tampered with by either Mr Cooper or his uncle) was accepted by the Tribunal.
37 Having made the above comments on the credibility of the witnesses, the Tribunal makes the following findings in respect of the relevant disputed facts.
38 The Tribunal is satisfied on the balance of probabilities (and so finds) that the following incidents occurred:
• In about August or September 2015, the respondent threatened Ms Robinson that he would 'crush/cut [her] up into little bits' or the like in such a menacing way as to reasonably cause her (a 70yearold woman who was living alone opposite the respondent) to be frightened and telephone the police. The police attended and spoke to the respondent. Although no charges were apparently laid, the Tribunal accepts that Ms Robinson was genuinely and reasonably afraid of the respondent following the incident and his subsequent behaviour towards her (described below) was menacing and exacerbated the situation. The Tribunal did not accept the respondent's version of events in crossexamination (it was inconsistent with his statement) and his explanation that it was all a mistake and he used the word 'Shrek' instead defied credibility.
• Having threatened Ms Robinson, as set out above, the respondent then verbally abused her on at least one other occasion, and purposefully interfered with her attempts to protect herself by aiming lights at her surveillance video camera to prevent it from operating properly.
• In December 2015, the respondent supplied Ms Wals with a small amount of cannabis and she could smell cannabis fumes coming from his premises from time to time.
• The respondent verbally abused Ms Wals on at least on occasion, calling her a 'c - - t' which would (quite reasonably, in the Tribunal's view) be highly offensive to a woman, and outside what would be acceptable behaviour between neighbours.
• On 15 December 2015, there was an incident between the applicant and the respondent, Mr Atwell, and Mr Jay. The Tribunal accepts the applicant's evidence that he attended at the respondent's premises to discuss with Mr Atwell some damage Mr Atwell had allegedly caused to Ms Wals' property and Mr Atwell's objection to Ms Wals hosting a children's birthday party. Mr Atwell and the respondent were abusive to the applicant. The Tribunal does not accept, as alleged by Mr Jay and the respondent, that the applicant was the aggressor in this confrontation or that he uttered the insults as alleged.
• Shortly after the applicant served the respondent with the without grounds notice of termination on 19 December 2015, the respondent attended at the park office in an agitated and angry state threatening to 'ruin' the applicant.
• On 24 April 2016, the respondent again threatened the applicant, which resulted in an attendance by the police.
• On 8 July 2016, the respondent assaulted the applicant, who then attempted to defend himself using capsicum spray. This resulted in a further attendance by the police and the granting of the applicant's interim Violence Restraining Order against the respondent. The respondent has objected to the Violence Restraining Order, and the substantive hearing has been adjourned by the Magistrates Court pending determination of this matter by the Tribunal.
39 Although the Tribunal is satisfied that Ms Robinson and Ms Wals were generally credible, their allegations concerning ongoing noise and disturbance were general and somewhat vague. In the absence of very specific evidence (such as a log of specific events including dates and times), the Tribunal is not satisfied on the balance of probabilities that the respondent's noise levels, swearing generally, or his or his visitors' vehicle movements were sufficient to constitute an 'intolerable' situation as alleged. It was open to the applicant to provide much more detailed evidence (a list had been compiled by Ms Robinson and provided to police, and extracts from Ms Wals' diary or park records were alleged to contain specific details of events) but that evidence was not tendered. Furthermore, the evidence presented was that the allegedly excessive vehicle movements substantially reduced after the installation of security cameras by the applicant.
40 Furthermore, the Tribunal is not satisfied on the balance of probabilities that the respondent's activities involved drug dealing. Evidence that he supplied Ms Wals with a small amount of cannabis on a single occasion, in circumstances where she said she requested it, does not mean he is a 'drug dealer', nor does evidence of syringes in the communal toilet block or the alleged 'short visits' from visitors. The Tribunal heard evidence that the police attended the respondent's premises in respect of such allegations and no charges were laid. No doubt charges would have been laid if evidence of a 'meth lab' (as alleged) had been found on the premises.
41 Finally, the Tribunal is satisfied on the evidence that the applicant's activities in installing security cameras and patrolling the park at night with a spotlight was for the purpose of ensuring the security and safety of park residents, and was not unreasonable in all the circumstances. The Tribunal does not accept the respondent's contention that it was for the purpose of harassing him or otherwise interfering with the respondent's quiet enjoyment of his premises.
42 In Howe, the Senior Member noted that the purpose of the requirement of s 68(4)(b) of the RP Act that a termination be justified in all the circumstances is to 'provide a sensible balance between the rights of a park operator and that of a tenant. It prevents a park operator terminating an agreement on a mere whim.' The Senior Member cautioned against attempting to define what may constitute justification in all circumstances. It is a question which is factually driven.
43 Despite its findings concerning the allegations of general nuisance and drug dealing, the Tribunal is nevertheless satisfied on all the evidence that there has been an irreconcilable breakdown of the relationship between the applicant and the respondent, and between the respondent and two of the remaining tenants. The Tribunal's findings, set out above, demonstrate a level of conduct, hostility and animosity which is well beyond the 'relatively trivial' and 'relatively minor' as described in Howe. Furthermore, unlike Thomas (where there was clear evidence that the park manager encouraged residents to make false complaints) and Hansel (where the allegations of antisocial behaviour were wholly uncorroborated by witness statements or police reports), the Tribunal is satisfied there is sufficient evidence to support a finding in the present matter that termination of the periodic longstay agreement is justified in all the circumstances. It is not based on a mere whim. To the contrary, the conduct involved, and the consequent breakdown in relationships between the respondent and other residents, is so serious and so significant that it impacts on the operation of the park. It is different from the facts considered by the Tribunal in Howe, Thomas and Hansel. For these reasons, the Tribunal is satisfied that terminating the agreement is justified in all the circumstances.
Conclusion
44 For the reasons set out above, the Tribunal is satisfied that the requirements of s 68 of the RP Act have been established; namely, that:
• the applicant gave a notice of termination to the respondent (a longstay tenant) in accordance with the provisions of s 38 and s 42 of the RP Act: s 68(1)(a);
• the respondent did not give vacant possession of the agreed premises to the applicant on the specified day: s 68(1)(b);
• within 30 days after the specified day the applicant made an application for an order terminating the agreement and requiring vacant possession: s 68(2) and s 68(3);
• the Tribunal is satisfied that terminating the agreement is justified in the circumstances: s 68(4)(b);
• the Tribunal is not satisfied that any of the matters set out in s 68(5) of the RP Act are established; and
• the Tribunal is not satisfied that any of the facts set out in s 68(7) of the RP Act are established.
45 Accordingly, the Tribunal terminates the periodic longstay agreement and requires that the respondent give vacant possession of the premises to the applicant.
46 Section 68(8) of the RP Act provides that the Tribunal must specify the day on which the orders take place. Section 68(9) of the RP Act provides that the specified day must be no later than seven days after the day on which the order was made. Section 68(6) of the RP Act provides that if the Tribunal makes the orders, it may suspend the operation of the orders for not more than 30 days if satisfied that it is desirable in the circumstances to do so, having regard to the relative hardship that would be caused to the park operator by suspending the orders or to the longstay tenant by refusing to suspend the orders.
47 No evidence was tendered by the respondent as to any specific hardship to the respondent in vacating the premises within the statutory period of seven days. Although the Tribunal acknowledges that the respondent has lived in the premises for some years, and moving on short notice is necessarily challenging and inconvenient, the Tribunal is not satisfied that the respondent's hardship in moving within seven days outweighs the applicant's hardship in suspending the orders. The Tribunal is satisfied on the findings set out above that the respondent's continued presence in the park is exacerbating a situation which is already intolerable. For these reasons, the Tribunal considers that the order should take effect no later than seven days after the date on which the orders were made (being 13 September 2016), namely, on Tuesday, 20 September 2016.
Orders
48 For these reasons the Tribunal orders:
1. The periodic longstay agreement between the applicant and the respondent is hereby terminated.
2. The respondent shall give vacant possession of the premises to the park operator pursuant to s 68 of the Residential Parks (Longstay Tenants) Act 2006 (WA) no later than Tuesday, 20 September 2016.
I certify that this and the preceding [48] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS K WHITNEY, MEMBER
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