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 of the hearing and an order made dismissing the application.
The following reasons for decision have been prepared from the transcript and have been subject to only minor editing to improve clarity of expression and set out.

The application

This is an application brought under s 62(2) of the Residential Parks (Long-stay Tenants) Act 2006 (WA) (RP(LST) Act). All references in the reasons for decision to sections of legislation will be to that Act unless otherwise indicated. The applicant seeks an order 'To overturn my eviction notice and be allowed to remain in my home.'

The longstay agreement and notice of termination

The applicant's long-stay agreement is a periodic agreement dated 30 May 2009 relating to site 47 at the Kelmscott Caravan Park. The applicant was a resident in the park for some time prior to that period and there is documentation which reflects that he was a resident at least during 2006.
What is referred to as an eviction notice by the applicant is a notice issued by the respondent under s 42 of the RP(LST) Act; that is a notice terminating without grounds. The notice is dated 7 May 2010 and requires vacant possession by 11 November 2010.
Under s 42, 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 site only agreement. In this case, the applicant has a site only agreement and the park operator has obviously given a notice which is intended to be at least 180 days after the date of the notice. There is in fact a minor contest between the parties as to the date on which the notice was delivered, but, on any calculation, more than 180 days will have expired by 11 November 2010. There is no issue about the validity of the notice from that perspective.

The issues and position of the parties

The application raises the following issues for determination:
1)whether a notice of termination issued without grounds must nevertheless be justified;
2)what circumstances would justify termination by a notice without grounds;
3)whether in all the circumstances of this case, if it is necessary to show that the termination must be justified in all the circumstances, that requirement is met;
4)whether the Tribunal should dismiss the application on grounds of delay; and
5)alternatively to 4, whether the Tribunal has power to entertain the application before expiry of the notice period.
The applicant asserts that the notice should be overturned on the basis that it was motivated by animosity and that there is no justification for the termination of the agreement. The applicant stated that this was evident from the following circumstances. Firstly, that there had been many minor incidents in which he had been treated rudely and which reflected animosity held towards him by the respondent. This, he said, was indicated by an incident which occurred some unspecified time ago when he stated that Mr Johnson, 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.
The applicant 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 applicant had with visitors in the park.
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. In any event, it contends that the motivation for termination has nothing to do with the applicant's conduct. The termination is because of its plans to redevelop the park.
The respondent says that the application has been made too late. The application was made on 23 June 2010 and, as indicated, the notice of termination was given, or dated, 7 May 2010. The evidence suggests that it was either delivered on that day, as the respondent says, or at the latest on the following day, 8 May 2010, on the applicant's version of events. That, the respondent contends is too long a delay and presumably on discretionary grounds the Tribunal should refuse to grant the application.
The respondent also raises grounds relating to the provisions of s 68 of the Act which it contends governs the powers which may be exercised by the Tribunal. It submits that until the notice period has run its course, and in the event only that it has to apply to the Tribunal for an order for vacant possession, will the Tribunal have the powers set out in that section.

Issues 4 and 5: the powers of the Tribunal

Section 62(2) provides:
(2)The party may apply to the State Administrative Tribunal for relief if
(a)a breach of the agreement has occurred; or
(b)any other dispute has arisen under or in connection with the agreement or in connection with any payment to be made under or in connection with the agreement.
It is under that section that the applicant has made this application. The words used in s 62(2)(b) are of the widest possible import. It is any dispute in connection with the agreement or in connection with any payment which may be referred to the Tribunal. There is nothing which can be found within the legislation which suggests that it would be consistent with the purpose of the legislation to delay the resolution of a genuine dispute about whether or not a notice has been issued on a proper basis in the manner for which the respondent contends.
One of the purposes of the legislation is clearly to provide the parties to a longstay agreement with a workable method of resolving disputes. There can be no benefit in having to wait until the notice has expired some six months later, leaving the parties in a state of uncertainty as to whether or not their rights are enforceable, if one of the parties chooses to refer the matter to the Tribunal challenging the justification for termination at an earlier time.
There is also nothing within the legislation that suggests there is any time limit to the bringing of such an application under s 62. Clearly, such an application could be brought at any time prior to the park operator bringing an application under s 68, seeking vacant possession. I therefore reject both bases put forward as grounds on which the Tribunal lacks power to deal with the matter.
I turn now to address the issues relating to the construction of the legislation, and whether or not a notice without grounds must be justified in all the circumstances.

Issue 1: must notice without grounds be justified

Section 66 provides the Tribunal with the power to order vacant possession where the rent has not been paid, subject of course to the requisite notices being given. Section 67 enables the Tribunal to make an order for vacant possession at the end of a fixed term agreement.
Section 68 is expressed as enabling the Tribunal to make an order for vacant possession on other grounds. The issue is whether 'other grounds', as reflected in the heading, includes a notice which has been issued without grounds. Section 68 is expressed by subsection (1) to apply where:
(a)a park operator has given a notice of termination to a longstay tenant, except a notice of termination under s 39, which is a reference to a notice given for nonpayment of rent, or where a longstay tenant has given a notice of termination to the park operator; and
(b)the tenant does not give vacant possession of the agreed premises to the park operator on the specified day.
If s 68 does not apply to a notice under s 42, given without grounds, there is no section of the Act which gives the Tribunal any power to make an order for vacant possession. In those circumstances, the conclusion which I have come to is that s 68 is intended to cover all circumstances in which a notice of termination has been given, except for a termination based on nonpayment of rent. Consequently, for instance, it would apply where notice of termination is given on the ground that the park has been sold. It also applies in relation to a termination on the ground of breach of the longstay agreement, other than for nonpayment of rent. For the same reasons, as already indicated, it must also apply to where notice is given without grounds, because otherwise there would be no power in the Tribunal to grant an order for vacant possession.
It is to be noted that under s 33, a longstay agreement is only terminated when either a fixed term agreement has expired and the tenant gives vacant possession, or in any other case the Tribunal terminates the agreement under Pt 5. That is a clear indication that it is necessary to find within Pt 5, which contains the sections to which I have referred, the power to terminate and order vacant possession.
That then raises the question of how s 68(4) is to operate.

Issue 2: the circumstances justifying termination without ground

Section 68(4) provides that the Tribunal may make the orders terminating the agreement and for vacant possession if a notice of termination is given in accordance with the Act, and -
(a)where notice is given on the grounds that the longstay agreement has breached the longstay agreement, the Tribunal is satisfied that the grounds are made out and the breach is, in all the circumstances, such as to justify terminating the agreement; or, relevant to this case,
(b)if the notice was given for any other reason, the Tribunal is satisfied that terminating the agreement is justified in all the circumstances.
Again, on the same reasoning, the terminology of a notice being given for any other reason must include a notice given without grounds. That means that whatever the basis of the notice of termination, the Tribunal must be satisfied that the termination of the agreement is justified in all the circumstances. The purpose of such a provision 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. 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.

Issue 3: do the circumstances justify termination?

I accept that all of the incidents involving the conduct of the applicant were relatively trivial. I do not consider that trivial circumstances will provide justification for termination of a 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.
However, weighing all of the evidence, I accept that the underlying motivation for termination in this case is the intention of the respondent to develop the park. The respondent has included in its documentation a series of emails with an organisation, Kent Corp, which, as is evident from the emails, is involved in the construction of park homes. It is evident from that exchange of emails that in March and April 2010, the respondent had commenced a process of investigating the feasibility of building a park home.
The evidence of Mr Johnson was that they intended to redevelop the park progressively. The first step in that course was to have a park home constructed on the site - that is, site 47 - currently occupied by the applicant. There were logical reasons advanced for that. They were that that, firstly, it was immediately opposite the office of the park and that it would therefore constitute an ideal location for use as a display home. If the respondent was successful in marketing the purchase of similar homes, it then intended progressively to take up other lots or sites in the caravan park on which the park homes would be constructed. There was evidence that a notice had already been given to one other tenant for the same purpose.
The applicant endeavoured to challenge that evidence by relying on the timing of the notice of termination. On Thursday, 6 May 2010, he had attended at the office to pay rent as he customarily did on Thursdays, being the day under the lease when the rent was due.
While the applicant was in the office, Mr Johnson raised with him that he had observed that the applicant had been spending some time with visitors to the park. That issue was something of a longrunning sore between the parties. It transpired that some time previously tenants in the park, Mr and Mrs Gray, had complained to Mr Johnson. They had indicated that while they thought that the applicant was, as they have described him, 'not a bad bloke', he tended to hang around and did not seem to know when it was time to leave.
The Grays specifically asked Mr Johnson not to raise the fact of their complaint with the applicant, but they asked to be moved to a different site, which was done. As a result of that, the respondent was sensitive to the applicant spending more time with visitors to the park, and Mr Johnson had endeavoured to ensure that the applicant did not do so. He explained that he thought that he was obliged to follow that course, pursuant to cl 17.3 of the longstay agreement, and under the park rules, in terms of which the park operator was obliged to take all reasonable steps to enforce the obligation of any other tenant not to cause or permit any interference with the reasonable peace, comfort or privacy of other tenants.
One can understand that this was something which was a cause of annoyance to the applicant, and it is perhaps not surprising that when the matter was raised an altercation developed between the applicant and Mr Johnson. As a result of this, Mr Johnson stated that he was unable to deliver the notice of termination, which had been originally dated 6 May 2010, and had been prepared with the intention of handing it over to the applicant when he paid his rent. Ms Kerr, one of the owners of the park operator, corroborated this in evidence.
Both Mr Johnson and Ms Kerr stated that consequently the notice was rewritten to reflect the date 7 May 2010 because, as Ms Kerr explained, they understood it was important to ensure that the notice was dated the date upon which it was served. As indicated, there is an issue between the parties about the date of service. The applicant contends that it was served on him on the Saturday because he was aware that when it was served there was another person present who was working from Monday to Friday.
It is not essential to resolve that dispute, nor would it be easy to do so, because all parties gave evidence in a credible manner. I am satisfied that they endeavoured to give honest and correct information to the Tribunal. It follows, therefore, that there is no basis for me to reject the evidence of Mr Johnson and Ms Kerr to the effect that the notice had been prepared ready for service on the applicant on 6 May 2010. Once that is accepted, it undercuts much of the applicant's criticism that there was a motivation for termination of the agreement other than to redevelop the park.
In any event, I accept that the objective material, namely the emails to which I have referred, corroborates the evidence given by the respondent of its intention to redevelop the park. In those circumstances, I am satisfied that if this matter were to come before me under s 68, that in all the circumstances an order should issue for termination of the lease.
I appreciate that is a difficult matter for the applicant to accept. It is necessary to understand that this legislation endeavours to achieve a balance between the interests of park owners and those of tenants. Park owners are generally private owners who have invested in land for the purposes of profit, and it is clear from the reading of the legislation as a whole that, subject to the procedural controls which have been set out in the legislation, it is not in any way intended to curtail the right of a private owner to sell or to develop land.
It follows that the application must be dismissed.

I certify that this and the preceding [39] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR C RAYMOND, SENIOR MEMBER