Josey and Batavia Coast Caravan Park
[2012] WASAT 176
•14 MAY 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: RESIDENTIAL PARKS (LONG-STAY TENANTS) ACT 2006 (WA)
CITATION: JOSEY and BATAVIA COAST CARAVAN PARK [2012] WASAT 176
MEMBER: MR D AITKEN (MEMBER)
HEARD: 14 MAY 2012
DELIVERED : 14 MAY 2012
PUBLISHED : 22 AUGUST 2012
FILE NO/S: CC 414 of 2102
BETWEEN: MERLE JOSEY
Applicant
AND
BATAVIA COAST CARAVAN PARK
Respondent
Catchwords:
Residential park Whether termination of longstay agreement without grounds was justified Whether a genuine plan to redevelop the park existed Whether notice of termination complied with requirements of Residential Parks (Longstay Tenants) Act 2006 (WA)
Legislation:
Residential Parks (Long-stay Tenants) Act 2006 (WA), s 7(1)(b), s 38, s 42, s 42(2), s 62, s 62(2), s 62(2)(b), s 62(3), s 68, s 68(2), s 68(4), s 68(4)(b), Sch 10 Div 1(5)
Residential Parks (Long-stay Tenants) Regulations 2007 (WA), reg 13
Result:
Application successful
The notice of termination did not comply with the requirements of Residential Parks (Long-stay Tenants) Act 2006 (WA)
The Tribunal was not satisfied that terminating the longstay agreement was justified
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Self-represented
Solicitors:
Applicant: N/A
Respondent: N/A
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
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The applicant is a long-stay tenant of the Batavia Coast Caravan Park under a periodic site-only agreement and the respondent is the park operator. The park operator gave to the applicant a 180 days notice of termination of the agreement without grounds and the applicant applied under s 62(2) of the Residential Parks (Long-stay Tenants) Act 2006 (WA) for an order to overturn the notice.
The applicant contended that the notice was the result of provocation and threats by the park management and that alleged breaches of the park rules by the applicant and members of her family were false and therefore, by implication, the termination of the long-stay agreement was not justified. The park operator said that it was not seeking to justify the termination of the longstay agreement on the basis of behavioural issues and that the termination was solely due to the proposed redevelopment of the area of the park in which the applicant's site is located.
The Tribunal found that the termination notice did not comply with the requirements of the Residential Parks (Long-stay Tenants) Act 2006, because it did not correctly identify the applicant's site and, therefore, the park operator would not be entitled to an order for the applicant to give vacant possession of the applicant's site to the park operator after the expiry of the period of the notice. However, because the parties had argued the merits of the issue of whether the park operator was justified in terminating the agreement, the Tribunal also addressed that issue.
The Tribunal noted that the evidence submitted by the park operator did not disclose any market or financial analysis having been undertaken prior to the notice being issued. The Tribunal also noted that the park operator had not submitted any documents which were in existence prior to the date of the notice relating specifically to the redevelopment of the relevant area of the park. The Tribunal found that the motive and basis for the termination notice was not the existence of a genuine plan for redevelopment of the area of the park in which the applicant's site is located but, instead, the motive was the conflict which occurred between the park manager and the applicant and members of her family in the period just prior to the notice being given. The Tribunal was not satisfied, in those circumstances, that terminating the agreement was justified.
Introduction
This application was heard on 14 May 2012. An oral decision was delivered shortly after the conclusion of the hearing and an order was made that the notice of termination given by the respondent to the applicant was not given in accordance with the Residential Parks (Longstay Tenants) Act 2006 (WA) (Act) and that the Tribunal is not satisfied that terminating the longstay agreement between the parties is justified in all the circumstances.
The following reasons for decision have been prepared from the transcript and have been subject only to minor editing to improve clarity of expression and for completeness.
The application
This is an application by Mrs Merle Josey against the park operator of the Batavia Coast Caravan Park (the park) under s 62(2)(b) of the Act. Initially, the application was made under s 7(1)(b) of the Act but, by consent, it was amended at the commencement of the hearing when the Tribunal pointed out to the parties that s 62(2)(b) of the Act is the appropriate provision under which the Tribunal should deal with the matter.
Section 62(2)(b) of the Act provides that a party to a longstay agreement may apply to the Tribunal for relief if a dispute has arisen under, or in connection with, the agreement, and s 62(3) of the Act provides that, on hearing an application under s 62(2) of the Act, the Tribunal may make such orders as it considers appropriate.
In the application, Mrs Josey states that she is seeking an order to overturn a termination notice given to her by the park operator on the grounds that the termination was due to provocation and threats by management, and that the alleged breaches of the park rules by her and her family are false.
The longstay agreement and notice of termination
Mrs Josey entered into a periodic siteonly agreement with the park operator dated 8 August 2008 (agreement) for the occupancy of site 47 at the park. The agreement permits Mrs Josey to position a relocatable home on the site, which she has done. Prior to entering into the agreement, Mrs Josey had been a tenant of the park for many years. The Act applies to the agreement because it is a longstay agreement as defined in the Act.
The park operator gave a notice to Mrs Josey dated 21 December 2011 entitled 'Notice of Termination by Park Operator Without Grounds' (notice), which states that the park operator intends to terminate the agreement under s 42 of the Act, and that vacant possession is required by 19 June 2012.
The positions of the parties and the issue to be determined by the Tribunal
At a directions hearing held on 19 April 2012 before Senior Member Raymond, it was noted that there have been other applications to the Tribunal involving the park, and that the Tribunal had drawn the attention of the park operator to the decision of the Tribunal in Howe and Kelmscott Caravan Park [2010] WASAT 148 (Howe), in which the Tribunal held that, even where a notice of termination is issued without grounds, nevertheless, the termination must be justified in order for the Tribunal to issue an order for vacant possession.
At the directions hearing, Senior Member Raymond observed that the situation in this matter is very much like that in Howe, in that Mrs Josey has brought an application, before the time has run under the notice, to say:
This notice can't be right. It should be set aside
and that the Tribunal can deal with the underlying issue, even though the park operator is not yet able to seek an order for vacant possession. Senior Member Raymond summarised to Ms Appelbee, as the representative of the park operator, the position of Mrs Josey in the following terms:
I have been a tenant for 18 years. I have been a good tenant. I always pay my rent and really I shouldn't be evicted based on two incidents that have occurred with my son.
In response, Ms Appelbee stated:
The notice wasn't issued as a result of Mr James' behaviour. It has been a combination of ongoing events as well as the development plans for the park which she is affected by.
Senior Member Raymond then asked a series of questions, which Ms Appelbee answered, regarding the development plans and the longstay tenants who will be affected. Senior Member Raymond then summarised to Mrs Josey the position of the park operator in the following terms:
Ms Appelbee has said apart from some, what you might call behavioural issues, and I think that relates to the situation with your son and brother respectively that the park has had plans to redevelop which go back to 2006 but which were delayed by the owners of the park for personal reasons for some time, but which have been reactivated now and that will require not only Mrs Josey to vacate, but two or three other longstay tenants in the area of Mrs Josey's home, and there are proceedings before this Tribunal in relation to two other tenants who, if I understand correctly, Ms Appelbee, you're saying that there are breach issues but notices without grounds have been issued because their tenancies are also needed for the redevelopment. Is that correct, Ms Appelbee?
In response, Ms Appelbee stated that this was correct.
Senior Member Raymond then stated that, before any order can be made requiring Mrs Josey to move out of the park, the Tribunal will have to be satisfied that it is justified and that it is not being done for some ulterior purpose or on some capricious or whimsical basis because Mrs Josey has annoyed someone, and that there must be more substance to it than that.
Senior Member Raymond then stated that the documentation, which Ms Appelbee had stated during the directions hearing that she had prepared to support what she had told him about the redevelopment plans, would be very important to the outcome of the case because, if there are genuine redevelopment plans in place which genuinely require Mrs Josey's area of the park to be vacated, and particularly in circumstances where there is no other alternative and there is nowhere else Mrs Josey could be located in the park, that might well be a basis on which the Tribunal would be bound to say an order is justified.
Senior Member Raymond issued orders requiring the parties to file with the Tribunal, and serve on each other, all documentary evidence on which they wished to rely, and listed the matter for final hearing. Each party filed and served documents in response to those orders.
The relevant provisions of the Act
There are a number of provisions in the Act which are relevant to the issue to be determined by the Tribunal.
First, there are the provisions concerning the power of the Tribunal to deal with the application. Section 62 of the Act provides, relevantly, as follows:
(1)This section applies in relation to a party to any of the following
…
(b)a longstay agreement;
…
(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.
(3)On hearing an application under subsection (2) or another provision of this Part, the State Administrative Tribunal may give such directions and make such orders as it considers appropriate.
…
Secondly, there are the provisions concerning the giving of the notice. Section 42 of the Act provides, relevantly, as follows:
(1)A park operator may give a notice of termination to a longstay tenant to terminate the longstay agreement without grounds.
(2)The notice of termination must
(a)state that the park operator intends to terminate the longstay agreement under this section;
(b)specify the day on or before which the park operator requires the longstay tenant to give vacant possession of the agreed premises to the park operator; and
(c)comply with section 38.
(3)The specified day must be
…
(b)for a siteonly agreement at least 180 days after the day on which the notice is given;
…
Section 38 of the Act provides as follows:
A notice of termination must
(a)be in writing;
(b)be signed by the person who is giving the notice;
(c)identify the agreed premises; and
(d)include the prescribed information (if any).
Regulation 13 of the Residential Parks (Longstay Tenants) Regulations 2007 (WA) (Regulations) provides that, for the purposes of s 38(d) of the Act, a notice of termination without grounds must contain the information set out in Sch 10 Div 1(5) of those Regulations.
Thirdly, there are the provisions concerning the making of an order by the Tribunal terminating the longstay agreement and an order for vacant possession. Section 68 of the Act provides, relevantly, as follows:
(1)This section applies where
(a)a park operator has given a notice of termination to a longstay tenant (except a notice of termination under section 39), or 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.
(2)The park operator may apply to the State Administrative Tribunal for
(a)an order terminating the agreement; and
(b)an order for the long-stay tenant to give vacant possession of the premises to the park operator.
(3)An application must be made within 30 days after the specified day.
(4)The State Administrative Tribunal may make the orders if a notice of termination was given in accordance with this Act and
(a)where the notice was given on the grounds that the longstay tenant has breached the longstay agreement the State Administrative Tribunal is satisfied that the grounds are made out and that the breach is in all the circumstances such as to justify terminating the agreement; or
(b)if the notice was given for any other reason the tribunal is satisfied that terminating the agreement is justified in all the circumstances.
Does the Tribunal have the power to deal with the application?
In Howe, the Tribunal decided that a longstay tenant can seek relief under s 62(2)(b) of the Act at any time after a notice of termination has been given by a park operator, prior to the park operator making application for an order for vacant possession upon the expiry of the period of notice. Therefore, the Tribunal does have power to deal with this application.
Does the notice comply with the provisions of the Act?
Pursuant to the provisions of s 68(4) of the Act, a notice of termination must have been given in accordance with the Act before the Tribunal can make the orders referred to in s 68(2) of the Act, if it is satisfied that terminating the agreement is justified in all the circumstances. Therefore, before addressing the issue of whether or not the Tribunal is satisfied that terminating the agreement is justified, the Tribunal will firstly address the question of whether the notice has been given in accordance with the requirements of the Act.
The notice complies with the requirements of s 42(2)(a), s 42(2)(b), s 38(a), s 38(b) and s 38(d) of the Act. However, it states that the site location is site 48, not site 47. Therefore, it does not identify the agreed premises as required by s 38(c) of the Act and consequently, the notice does not comply with the requirements of s 42(2)(c) of the Act. On that basis alone, the Tribunal will not have the power to make orders under s 68 of the Act if the park operator is to seek those orders after the expiry of the date by which vacant possession is required under the notice.
However, because the parties have argued the merits of the issue of whether the park operator is justified in terminating the agreement for the purposes of s 68(4)(b) of the Act, the Tribunal will also address this issue.
Is the park operator justified in terminating the agreement in all the circumstances?
The justification issue was framed at the directions hearing in terms of the proposed redevelopment of the park and, in particular, the area in which site 47 is situated. However, the documents lodged by Ms Appelbee on behalf of the park operator include the following statement:
Ultimately the reason behind the notice of termination is redevelopment. However, the behaviour of Ms Josey and her family is the reason behind the timing of the notice.
In view of that statement and the fact that the park operator had filed documents in relation to the behavioural issues, at the commencement of the hearing, the Tribunal sought clarification from Ms Appelbee as to whether or not the park operator is contending that the termination of the agreement is justified on the grounds of the behaviour of Mrs Josey and members of her family.
In response, Ms Appelbee stated that the park operator is not seeking to justify the termination of the agreement on the basis of behavioural issues and is purely relying on the development plans for the park as the justification for the termination of the agreement. The Tribunal has therefore ignored the behavioural issues.
The Tribunal notes that the matters of Batavia Coast Caravan Park and Thomas [2012] WASAT 88 (Thomas) and Batavia Coast Caravan Park and Hansel [2012] WASAT 91 (Hansel) concerned notices of termination without grounds given to two other longstay tenants of the park. In both of those matters, the Tribunal decided that the notices of termination were not justified in all the circumstances. Significantly, in those cases, the Tribunal found, amongst other things, that there was not a genuine proposal to redevelop the park in respect of the sites concerned.
In its reasons for each of those decisions, the Tribunal noted that there was no documentary evidence provided by the park operator to support its contention that it was planning to remodel the manner in which the park operates to remove unsustainable tenants, reduce the number of long-stay tenants and increase the turnover of tourists.
The cases of Thomas and Hansel concerned sites which have ensuite facilities, and the park operator contended that it was planning to place cabins on those sites to cater for the tourist trade. Site 47, occupied by Mrs Josey, is in a different area of the park, and the park operator contends that it is planning to convert nine sites in this area into eight drivethrough sites to cater for tourists who only want to stay overnight without having to unhitch their caravan.
The Tribunal has considered the documentation and oral evidence given to it by Ms Appelbee, on behalf of the park operator, in respect of these development plans.
The documentation provided by the park operator can be put into a number of categories.
First, there is documentation in respect of the behavioural issues. The Tribunal has disregarded this evidence because it is not relevant, given that Ms Appelbee has stated that the park operator is not seeking to justify the termination of the agreement on that basis.
Secondly, there is documentation in respect of a development plan which was approved by the Shire of Greenough in September 2006 (2006 plan). The 2006 plan is for the extension of the park in four stages and does not affect the existing sites in the park. Therefore, the Tribunal has disregarded the documentation in respect of the 2006 plan.
Thirdly, there is documentation in respect of works which have been undertaken in furtherance of the 2006 plan, and to maintain and upgrade the park. The Tribunal accepts that the park operator has undertaken those works, but that is not relevant to the issue of whether or not the park operator is justified in terminating the agreement under which Mrs Josey occupies site 47, and therefore the Tribunal has disregarded this category of documents.
This leaves the documentation in respect of the decision, which Ms Appelbee says was made last year, to redevelop the existing areas of the park to increase the tourist intake of the park so as to increase turnover. Ms Appelbee has told the Tribunal that, due to the illness of Mr Kane Teakle, who is an owner of the park and used to play a major role in the running of it, the 2006 plan has not gone ahead according to schedule.
In her written submissions, which were included in the documentation provided to the Tribunal, Ms Appelbee has stated that there have been many contributing factors besides Mr Teakle's illness over the past two to three years which have resulted in the 2006 plan being revised. In those submissions, Ms Appelbee has stated as follows:
This has included things such as decline in tourism, larger caravans and vehicles, rise in utility costs, reduced income due to being unable to cater for specific requirements, increased wages, naming but a few. The situation was assessed again last year and after consultations I was advised that the decision was made that we needed to increase tourist intake and utilise what is already existing on the premises so as to increase turnover.
The details provided by Ms Appelbee on behalf of the park operator regarding the proposed development of the area in which Mrs Josey's site is located are set out on a plan which shows the layout of the eight drivethrough sites in the area currently consisting of sites 38 42 inclusive and sites 44 47 inclusive. The Tribunal has considered the documentation and oral evidence of Ms Appelbee regarding these factors.
Ms Appelbee has provided a letter dated 24 April 2012 by Mr Noel Anderson, chartered accountant of Lifetime Accounting Services. Mr Anderson states that he has been the accountant and business adviser for the park operator since it purchased the park in 2001. He refers to the 2006 plan and to money spent on upgrading the park since then. He then states that, despite that expenditure, turnover has been reducing and expenses increasing, and the business is now carrying unsustainable debt and must address soaring costs and declining turnover. Mr Anderson concludes by stating that the park must redevelop its current sites to attract higher return markets, and that redeveloping existing sites to create a profitable asset is essential for longterm sustainability of the park. The Tribunal accepts those statements, but notes that they are very general and are not supported by any details of market or financial analysis.
Also included with the documents provided by Ms Appelbee is a copy of the expenses sheet from the profit and loss statement for the year ended 30 June 2011, which also shows the expenses for the prior financial year and the profit or loss for each of those years. It can be seen that the park made a profit in 2010, but that changed to a loss in 2011. It can also be seen that the bulk of that deterioration in the bottom line was due to an increase in the cost of repairs and maintenance, and wages, with a small decrease in income. Ms Appelbee told the Tribunal that a large part of the increase in repairs and maintenance was money spent on an ablution block and that the increase in wages was due to Mr Teakle not being able to work in the business.
The documents provided by Ms Appelbee included a letter from Mr Teakle dated 26 April 2012. That letter provides some details of the work which has been done in the park. Mr Teakle refers to the profit and loss expenses report and the financial situation of the park, and to the park having to change which areas of the development proposal it implements first, but it does not provide any details regarding that. Mr Teakle then refers to his health issues before referring to Ms Appelbee's role as park manager, and finally refers to the behavioural issues concerning Mrs Josey.
Conclusion
The Tribunal has decided that the underlying motive and basis for the giving of the notice by the park operator to Mrs Josey was not the existence of a genuine plan to redevelop the area of the park in which Mrs Josey's site is situated. The documentation which has been provided to the Tribunal by the park operator does not show that any market research or financial analysis was undertaken prior to the notice being given to Mrs Josey. Therefore, as was the case with Thomas and Hansel, the Tribunal has found that the underlying motive for the issue of the notice was the conflict which occurred between Ms Appelbee and Mrs Josey and members of her family in December 2011, details of which are set out in the documentation provided to the Tribunal by Ms Appelbee.
The Tribunal has concluded that the contention that the park operator wishes to redevelop the area of the park in which Mrs Josey's site is located has only been raised by the park operator subsequent to the decision in Howe being drawn to the attention of Ms Appelbee by the Tribunal in April 2012. That conclusion is supported by the fact that the park operator has not produced any documents which were in existence prior to the date of the notice which relate specifically to the redevelopment of the area which includes site 47.
Order
The Tribunal makes the following order:
1.The notice of termination by park operator without grounds dated 21 December 2011 given by the respondent to the applicant was not given in accordance with the Residential Parks (Longstay Tenants) Act 2006 (WA) ('the Act') because it did not correctly identify the site the subject of the longstay agreement between the parties as required by s 38(c) and s 42(2)(c) of the Act.
2.The Tribunal is not satisfied that terminating the longstay agreement between the parties is justified in all the circumstances for the purposes of s 68(4)(b) of the Act.
I certify that this and the preceding [47] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D AITKEN, MEMBER
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