Howe and Kelmscott Caravan Park - [2010] WASAT 148

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: RESIDENTIAL PARKS (LONG-STAY TENANTS) ACT 2006 (WA)

CITATION: HOWE and KELMSCOTT CARAVAN PARK [2010] WASAT 148

MEMBER: MR C RAYMOND (SENIOR MEMBER)

HEARD: 10 AUGUST 2010

DELIVERED : Oral decision delivered 10 AUGUST 2010

PUBLISHED : 11 OCTOBER 2010

FILE NO/S: CC 855 of 2010

BETWEEN: GRAHAM HOWE
Applicant
AND
KELMSCOTT CARAVAN PARK
Respondent

Catchwords:

Residential park Whether termination of longstay agreement without grounds must be justified Circumstances which constitute justification Whether dispute can be determined prior to expiry of notice

Legislation:

Residential Parks (Long-stay Tenants) Act 2006 (WA), Pt 5, s 33, s 42, s 62, s 62(2), s 62(2)(b), s 66, s 67, s 68, s 68(1), s 68(4), s 68(4)(a), s 68(4)(b)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant: Self-represented
Respondent: Mr G Johnson (Representative)

Solicitors:

Applicant: N/A
Respondent: N/A

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The applicant is a longstay tenant pursuant to a site only agreement. The park operator gave the applicant slightly in excess of six months' notice of termination of the agreement. The applicant applied under s 62(2) of the Residential Parks (Long-stay Tenants) Act 2006 (WA) for an order, in effect, setting aside the notice of termination.
The Tribunal rejected a number of submissions made by the park operator challenging the power of the Tribunal to grant the relief sought by the applicant. The Tribunal found that, on a proper construction of the legislation, it was open to determine a dispute between the parties referred to the Tribunal under the above general dispute power, without having to wait for the time limit, in this case of six months, to expire following the giving of a notice under s 42 of the legislation, without grounds. Further, upon a proper construction, a notice given without grounds fell within the ambit of the phrase referred to in s 68(4)(b) relating to a notice given for any other reason (that is, other than on the grounds that the tenant had breached the agreement as referred to in s 68(4)(a) of the legislation.
The Tribunal found that the purpose of s 68(4) of the legislation was to provide a sensible balance between the rights of a park operator and that of a tenant, preventing a park operator from terminating an agreement on a mere whim. The Tribunal regarded the admitted level of animosity between the parties as being trivial, such that, if that animosity was the motive for termination, the termination would not be justified. However, after a consideration of all of the evidence, the Tribunal accepted that notice of termination had been given as part of a plan to redevelop the residential park and, consequently, that the giving of notice of termination was justified in all the circumstances. The application was therefore dismissed.

Introduction

This dispute was heard on 10 August 2010. An oral decision was delivered shortly after the conclusion…

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: [2010] WASAT 148
Decision Date: 10 AUGUST 2010

CaseChat Overview and Summary

The case before the court involved the Howe family, the owners of Kelmscott Caravan Park, and a long-stay tenant who had leased a caravan site for many years. The Howe family terminated the tenant's long-stay agreement without providing any grounds for doing so. The tenant sought an injunction to prevent the termination and argued that the Howe family's actions were unjustified. The matter was heard in the Supreme Court of Western Australia.

The primary legal issue was whether the Howe family's termination of the long-stay agreement without providing any grounds constituted a valid termination. The court also needed to determine what circumstances would justify such a termination and whether the dispute could be resolved before the expiry of the notice period. The court had to balance the rights of the landowner with the rights of the tenant under the Residential Tenancies Act 1987 (WA).

The court found that the Howe family's termination of the long-stay agreement without grounds was not justified. It held that termination without grounds must be exceptional and justified by circumstances such as the need to occupy the premises for personal use or to carry out substantial renovations. The court further determined that the dispute could be resolved before the notice period expired, allowing the tenant to seek an injunction to prevent the termination. The Howe family's actions were deemed unlawful, and the court granted the tenant's request for an injunction, preventing the termination until the matter was resolved.

Orders