Harding River Caravan Park and Soklaridis and Anor

[2008] WASAT 83

HARDING RIVER CARAVAN PARK and SOKLARIDIS & ANOR [2008] WASAT 83

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2008] WASAT 83
Act:	RESIDENTIAL PARKS (LONG-STAY TENANTS) ACT 2006 (WA)
Case No:	CC:282/2008	Heard:	2 APRIL 2008
Coram:	MR T CAREY (MEMBER)	Delivered:	2/04/08
No of pages:	9	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
PDF Version

Parties:	HARDING RIVER CARAVAN PARK JERRY SOKLARIDIS SUSANN PROBST
Catchwords:	Residential parks long­stay agreements Residential Parks (Long­stay Tenants) Act 2006 (WA) Application to terminate agreement for failure to secure agreement in accordance with Residential Parks (Long­stay Tenants) Act 2006 (WA) Exercise of Tribunal's discretion
Legislation:	Residential Parks (Long­stay Tenants) Act 2006 (WA), s 7, s 40, s 62, s 68 Residential Parks (Long­stay Tenants) Regulations 2007 (WA)
Case References:	Nil
Orders	1. The application is dismissed.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : RESIDENTIAL PARKS (LONG-STAY TENANTS) ACT 2006 CITATION : HARDING RIVER CARAVAN PARK and SOKLARIDIS & ANOR [2008] WASAT 83 MEMBER : MR T CAREY (MEMBER) HEARD : 2 APRIL 2008 DELIVERED : Edited reasons delivered extemporaneously on 2 APRIL 2008 FILE NO/S : CC 282 of 2008 BETWEEN : HARDING RIVER CARAVAN PARK

Applicant

AND

JERRY SOKLARIDIS
SUSANN PROBST
Applicant

Catchwords:

Residential parks long­stay agreements - Residential Parks (Long­stay Tenants) Act 2006 (WA) - Application to terminate agreement for failure to secure agreement in accordance with Residential Parks (Long­stay Tenants) Act 2006 (WA) - Exercise of Tribunal's discretion

Legislation:

Residential Parks (Long­stay Tenants) Act 2006 (WA), s 7, s 40, s 62, s 68

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Residential Parks (Long­stay Tenants) Regulations 2007 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant : Self­represented
Applicant : Self­represented

Solicitors:

Applicant : Self-represented
Applicant : Self-represented

Case(s) referred to in decision(s):

Nil

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REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 The applicant sought termination of the respondents' long­stay agreement which permitted them to occupy a site at the applicant's caravan park on the basis that it had not secured a written long­stay agreement in accordance with the Residential Parks (Long­stay Tenants) Act 2006 (WA).

2 The Tribunal had a discretion to grant or not grant the application. Matters going to that discretion which were raised by the parties included an alleged failure by the respondents to comply with a new rule of the park regarding licensing of vans and compliance with safety requirements, the respondents' conduct, the relationship between the parties and the respondents' dependence on being permitted to remain. The Tribunal found against the applicant on the allegation of failure to comply with the new rule and further found that there was insufficient basis otherwise to require termination.

3 The Tribunal gave its decision orally following the hearing. Its reasons, taken from the transcript and edited in minor aspects to aid clarity, were as follows.

Application

4 The applicant seeks an order that the periodic long­stay agreement enjoyed by the respondents in respect of site 66 in the applicant's caravan park situated in Roebourne be terminated and the respondents be required to give vacant possession of the site.

5 As originally framed, the application was brought under s 68(2) Residential Parks (Long­stay Tenants) Act 2006 (WA) (RPLT Act), based upon alleged breaches of the agreement constituted by one or both of the respondents' failure to comply with the park rules and failure to finalise their contract. The applicant acknowledged that reliance upon the former ground depended upon compliance with the notice provisions of the RPLT Actconcerned with breaches other than non­payment of rent. Those provisions are contained in s 40 of the RPLT Act, and culminate in an application to the Tribunal under s 68 for orders terminating the agreement and for vacant possession. After it was pointed out to the applicant that there appeared to be a shortfall in terms of both the period permitted by its default notice for remedying the breach and the period required by its notice of termination for the respondents to give vacant possession, the applicant indicated that it would not proceed with that aspect of its

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application. However, it did continue to seek termination of the agreement and vacant possession on the ground that, despite its attempt to secure it, no long­stay agreement in compliance with the RPLT Act had been made in the five month period referred to in s 7(1)(b) of the RPLT Act. In my view, such orders are clearly within the jurisdiction of the Tribunal under s 7(1) read with s 62, particularly (2) and (3), and I have treated the application as ultimately pursued as being brought under s 62 of the RPLT Act.

Issue

6 The issue for the Tribunal is whether it should exercise the discretion vested in it to terminate the respondents' periodic long­stay agreement on the basis that the applicant has not succeeded in its attempt to make a long­stay agreement with the respondents which complies with the RPLT Act because, among other things, it is in writing, within five months after the commencement of the RPLT Act on 3 August 2007.

Parties' contentions

7 The applicant says that the Tribunal should exercise it's discretion for the following reasons:

a) The respondent failed to comply with a new park rule concerning licensing of caravans and certifying them for electricity and gas. The applicant referred to a "failure to become compliant", which occurred despite having ample time to comply. The applicant contends it was justified in insisting upon this compliance before entering into a written long­stay agreement.

b) The general conduct and attitude of the respondents, in breach of park rules, which represented a risk to the welfare and safety of other park users.

c) A break-down in the relationship between the parties, resulting in suspicion and mutual reluctance to engage with the other, which has contributed to difficulties in the applicant operating its business to the point where it may not continue to offer long­stay accommodation.

8 The respondents submit that the Tribunal should not order termination of the long­stay agreement and rely on the following arguments:
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a) They have never been allowed to sign the agreement which was presented to them;

b) They have taken steps towards compliance with the applicant's requirements and are prepared to progress those to fruition;

c) The amendment to the rules upon which the applicant relies was never operative because they did not receive notice of it;

d) The allegations of misconduct were either ill­founded or exaggerated; and

e) Remaining in the park is crucial to their very existence given their circumstances and lack of any alternative accommodation.

My consideration

9 Some of the submissions from both parties raised matters of extreme importance to each of them. I have attempted to accommodate the gravity of the matters raised in my analysis of the situation. Unlike some other of the statutory circumstances for bringing a long­stay agreement to an end, there is no guidance provided by the RPLT Act as to how the Tribunal's discretion is to be exercised. I will commence my analysis with the history of the applicant's attempt to make a compliant long­stay agreement.

10 On 12 December 2007, the applicant gave one of the respondent's (Ms Probst) a pro forma written contract. There is no dispute about this, nor that the applicant made finalising (and signing) the agreement conditional upon the respondents' licensing their caravan. The applicant says there was a further condition, namely that the van be made electricity and gas compliant, but the respondents deny they were informed of this, at least when they received the contract.

11 According to the applicant, no, or no satisfactory, progress was made by the respondents to comply with the preconditions it had set for entering into a written contract until 6 February 2008, when a default notice purportedly under the RPLT Act for a breach was prepared and served. The respondents say that they were on holidays and away from the park between 19 January 2008 and 28 January 2008. They say that on 30 January 2008, the other respondent, Mr Soklaridis, spoke with Mr Clinton Mill of the applicant and another tenant of the park (the occupier of

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site 9) regarding licensing of caravans, the other tenant indicating that his friend, who was at the Karratha depot, would come to the park and licence the vans, and, to quote Mr Soklaridis, "Clinton seemed happy with the outcome". Again, according to the respondents, the man did not come out, the tenant of site 9 informing them that it was necessary to take their vans to the depot. The respondents say that, contrary to the apparent satisfaction of Mr Mill at the end of his conversation with Mr Soklaridis and the tenant of site 9 on 30 January 2008, Ms Probst was served with an eviction notice on 4 February 2008, requiring the respondents to vacate the premises on 8 February 2008. That notice is not in evidence and is not otherwise relied upon by either party.

12 On 6 February 2008, the default notice which is evidence was served. It was in the standard form for the purposes of s 40(1) of the RPLT Act in cases of default for reasons other than non­payment of rent. It contained the following "breach details":

"Date of breach of agreement: 12/12/2007

Nature of Breach: the tenants have refused to sign the contract given to them on the 12/12/2007. The tenants have refused the terms and conditions of the caravan park.

How the breach may be remedied:

1) Licensed and certified for electricity and gas of tenant caravan

2) To sign agreement (contract)"

13 Accepting that those associated with the applicant are not lawyers, parts of the recitation of the breach alleged are nevertheless notable. First, the date of breach, 12 December 2007, is the date on which the pro forma agreement was handed to Ms Probst, when it was made clear to her that the other matter or matters needed attention before the agreement could be finalised. It was thus impossible on that date for the agreement to be signed, and therefore, for a breach constituted by a failure to sign the agreement to have occurred on that day. This date also precedes the date upon which the applicant says the respondents were given notice of the new rule requiring vans to be licensed and certified for gas and electricity, let alone a date 30 days later than that date, which 30 day period is required by the Residential Parks (Long­stay Tenants) Regulations 2007 (WA) to elapse before it became operative. I will come back to this.
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14 The second point to note about the recitation of the breach is that the second particular of breach is expressed in the general terms of a "refusal" of "the terms and conditions of the caravan park", although when it comes to how the breach could be remedied, the more specific "licensed and certified for electricity and gas" is expressed first, followed by "to sign agreement". This is consistent with the applicant's insistence that the former occur before the latter. It also indicates the particular breach about which the applicant was concerned.

15 A further point worth mentioning concerns the first alleged breach, being the respondents' refusal to sign the contract. In my view, this is an incorrect description of the respondents' conduct; they did not "refuse'' to sign the contract, but, rather, were under the apprehension that they were unable to sign it by reason of the condition or conditions placed upon finalisation by the applicant which had not been met. This also raises a question as to how such a refusal, if there were one, could constitute a breach of contract. In the end, it was unnecessary to go into that question however, because of the applicant's sole reliance on s 7 of the RPLT Act. Success or failure of the application under that section comes down in large part to the extent to which the respondents are to blame for the parties' failure to secure a written contract by the required date.

16 The Tribunal will now turn to the dispute concerning service of a notification of a change of the park rules. Mr Clinton Mill was adamant in his oral evidence that on 21 December 2007, he handed Ms Probst a new sheet of the park's rules including the new rule; that he had discussed the new rule with her before doing so; and that immediately after handing the sheet to Ms Probst in their van, he spoke with Mr Soklaridis outside the van. Both Ms Probst and Mr Soklaridis were equally adamant that this simply did not occur, although Mr Soklaridis did accept that at one stage, Mr Mill made a statement that "it is not personal, it is what the State government stipulated" or words to that effect. However, he was unsure whether that was said on that occasion or at another time.

17 The significance of the determination of this issue is that it is the only occasion on which the applicant says that written notice of the new rule was given, so that if it is found not to have occurred, then no adverse inference can arise against the respondents for any failure to comply with the rule, at least until the service of the default notice. I have found it a difficult factual issue to determine. In the end, I have decided to accept the evidence of Ms Probst that she

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did not receive written notification of the new rule. This finding is made ultimately on the basis that the issue was one the onus of proving which lay on the applicant. In circumstances where there were two witnesses who gave evidence against the notification having been given, and their evidence in that regard is not for other reasons implausible, the applicant has failed to meet the onus upon it.

18 The consequence of this finding is that already referred in those reasons. The respondents cannot have been in breach of the new rule as it was not operative. Moreover, their failure to comply with the rule was not a valid basis upon which the applicant could refuse to finalise the contract. Given that s 7 of the RPLT Act required contracts to be finalised within five months of commencement of the RPLT Act, what it should have done was to invite the respondents to sign the contract, and sign it itself, by 3 January 2008, regardless of the provision of the notice of the rule change. Even on the applicant's own case, the new rule could not have been effective until around 21 January 2008.

19 A question might then arise as to whether the lack of action by the respondents to comply with the new rule after 6 February 2008, when they became aware of it as a result of service of the default notice, is significant to the main issue I have to determine. In that regard, I note that the parties agreed that relations between them had sunk so low that mutual applications for misconduct restraining orders were made and are still outstanding, and the process instituted by the applicant with its default notice was no doubt the main focus for each of them right up until the issue of the application in this Tribunal. In addition, although the respondents rejected the legitimacy of the notices served upon them, they no doubt felt at risk of losing their tenancy, which was a further deterrent to complying with the applicant's demands. That being so, the Tribunal does not regard the fact that little, if anything, was done following service of the notice should count against the respondents to any great degree, particularly as the respondents agreed in the course of the hearing to comply fully with the new rule if they are permitted to continue in the park as a tenant.

20 As for the allegations of misconduct against the respondents, once again, the issue comes down to one person's evidence against another's. Although the Tribunal does accept that there have been some instances of misconduct, and in particular, the incident relied upon of Mr Soklaridis exceeding the vehicle speed limit in the park, which is certainly not to be condoned, the Tribunal is not satisfied that the respondents' conduct has been sufficiently

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reprehensible to warrant an exercise of the discretion in the manner sought by the applicant. It will be recalled that the applicant did not expressly refer to any misconduct in their default notice, which is to be contrasted with the licensing and compliance matters. Similarly, a general "breakdown in the relationship" ground, although no doubt the cause of frustration and additional work for the applicant, is not in my view a proper basis, either by itself or in combination with any established breach, to order termination on the ground now being relied upon. This is particularly so given that the Tribunal accepts there is a shortage of on­site caravan accommodation in the area, and the respondents' personal circumstances, including their requirement for accommodation in the general area due to Mr Soklaridis' work, and that the respondents have a 17­month­old baby with a second child expected in July.

Conclusion and orders

21 For these reasons the Tribunal considers that it is not appropriate that its discretion be exercised to terminate the long­stay agreement enjoyed by the respondents by reason of the matters relied upon by the applicant. The application will therefore be dismissed. Although there was some discussion at the hearing concerning the possibility of an order placing a time limit on compliance with the new rule, it is considered that this is a matter better dealt with by the parties themselves, in circumstances where, as matters currently stand, the RPLT Act's requirement for a written long­stay agreement has still yet to be complied with. The Tribunal understands that once there is such an agreement, its terms will require compliance with the park rules, which, it would appear, now include the licensing and electricity and gas requirements.

22 The Tribunal orders as follows:

1. The application is dismissed.

I certify that this and the preceding [22] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR T CAREY, MEMBER