MAHER and ELLIOTT - [2020] WASAT 93

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: RESIDENTIAL PARKS (LONG-STAY TENANTS) ACT 2006 (WA)
CITATION:   MAHER and ELLIOTT [2020] WASAT 93
MEMBER:   MS KY LOH, MEMBER
HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   12 AUGUST 2020
FILE NO/S:   CC 31 of 2020
BETWEEN:   BERNARD PATRICK MAHER
Applicant
AND
RODNEY ELLIOTT
First Respondent
MARGARET ELLIOTT
Second Respondent

Catchwords:

Residential parks tenancy agreement - Whether agreement is longstay agreement - Terms of agreement where occupancy period comprises noncontinuous days - Whether purpose of grant of occupancy is for holiday

Legislation:

Residential Parks (Long-stay Tenants) Act 2006 (WA), s 5(1), s 5(1)(b), s 6, s 46, s 65(1)
Residential Parks (Long-Stay Tenants) Bill 2005 (WA)
State Administrative Tribunal Act 2004 (WA), s 60(2)

Result:

Preliminary issue determined

Category: B

Representation:

Counsel:

Applicant	:	In Person
First Respondent	:	In Person
Second Respondent	:	In Person

Solicitors:

Applicant	:	N/A
First Respondent	:	N/A
Second Respondent	:	N/A

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

Burnham v Carroll Musgrove Theatres Ltd [1928] 41 CLR 540
Queen's Club Gardens Estates Ltd v Bignell [1924] 1 KB 117
Smallwood v Sheppards [1895] 2 QB 627

REASONS FOR DECISION OF THE TRIBUNAL:

Preliminary Issue

A dispute arose between the applicant, Bernard Maher (occupant), as an occupant of bay 19 at the Tathams Caravan Park in South Yunderup (caravan park) and the respondents, Rodney and Margaret Elliott (owners), as owners of the caravan park.
The occupant applied under s 65(1) of the Residential Parks (Long-stay Tenants) Act 2006 (WA) (RP Act) for a determination of the amount of compensation to which a 'long-stay tenant' is entitled under s 46 of the RP Act in relation to a 'long-stay agreement'.
Following mediation conferences in March and May 2020, the mediation was terminated on 20 May 2020 with the parties agreeing to the following question being determined as a preliminary issue entirely on the documents filed by the parties, pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA):
Is the agreement between the parties a 'long-stay agreement' for the purposes of the RP Act?
Prior to the mediation, the parties filed with the Tribunal and provided to each other written submissions and documents, in particular, in respect of the following matters:
(a)the terms of the agreement between the parties regarding the right of the occupant to occupy bay number 19 at the caravan park; and
(b)the basis on which each party contends that that agreement is or is not a 'long-stay agreement' as defined in s 5(1) of the RP Act.

Background

The owners contend that on or about 5 March 2018 the parties entered into an agreement for the occupant to become an 'Annual Resident (holiday only)' (annual resident) of the caravan park.
Under the owners' standard form of 'basic rules and conditions' for annual residents (rules and conditions), an annual resident and another three nominated persons are allowed to:
occup[y] the van for a period of 139 days spread over 12 months (financial year) and comprises every weekend, public holidays and the balance of 25 days (5 weeks, weekends already accounted for) which can be taken as a block or throughout the school holidays etc.
The rules and conditions also provide for the annual resident to accept the rules and conditions by filling in a form 'below' and signing as having read and understood the rules and conditions and to return the notice to the caravan park office.
The owners provided a form completed with the occupant's details and the names of nominated persons, which appears to be signed by the occupant on 5 March 2018 (signed form). The occupant's address indicated in the signed form was an address in the suburb of Pearsall.
The occupant has not disputed that he signed and completed the signed form.
The owners assert that it is under this 'system' (that is, the annual resident system) that the occupant entered the caravan park.
At some time during the occupant's occupancy, the owners stated that the occupant asked for extra days above his allocated days allowed under the annual residency occupation under which he was registered due to his varied fly-in fly-out roster and his wish to spend more time at the caravan park with his family.
The occupant has not made contrary written submissions he has, however, submitted evidence of marital hardship and temporary separation (by way of an email from Perth Mediation Services dated 13 March 2019 about a Family Dispute Resolution (Mediation) meeting, an invoice from Forrest Medical Centre in Pinjarra dated 23 May 2019 for an unspecified procedure, and a doctor's referral for him to see Inspire Psychology dated 19 May 2019).
Whether (and if so, when) his issues of marital hardship and temporary separation were communicated to the owners is not clear.
On or about 5 December 2019 there was an altercation between the occupant and another occupant at the caravan park, with the parties in disagreement about who initiated the altercation.
On 7 December 2019, the owners sent an email to the occupant cancelling the occupant's annual residency forthwith, requiring him to remove his caravan and annexe or allowing reasonable time for the occupant to sell his caravan (albeit subject to the basic annual weekly charge of $98).
The occupant requested a formal eviction notice pursuant to their 'landlord/tenant agreement'. Ultimately, the owners responded that, as the occupant was an annual resident, they 'did not have a contract' and that the occupant's residency could be terminated by them or him at any time.
On 5 January 2020, the owners sent an 'official eviction notice' to the occupant, giving him until 9 January 2020 to pack up and vacate the caravan park. The notice indicated that the owners were prepared to allow two months for the sale of the occupant's caravan (subject to site fees). The notice stated that the occupant was in arrears for three months' fees, which was in itself a sufficient cause for eviction. The notice also stated that the occupant was 'entitled to take the matter to' the Tribunal.

Consideration

There is no direct evidence that the occupant was given a copy of the rules and conditions, nor that the signed form was an acknowledgment of the acceptance of those rules and conditions.
However, the occupant has not contested that he was given a copy of the rules and conditions, and indeed has attached a copy of the rules and conditions in his bundle of documents as the 'previously requested contract'.
As such, the Tribunal finds that the occupant entered into an agreement with the owners on 5 March 2018 on the terms set out in the rules and conditions, which will be referred to in these reasons as the 'annual resident agreement'.
The fundamental dispute between the parties is whether the annual resident agreement, or any extension or variation to that agreement, constitutes a long-stay agreement.

Meaning of long-stay agreement

The obligations and requirements under the RP Act apply only to longstay agreements: s 6 of the RP Act.
Section 5(1) of the RP Act relevantly provides the following definition of 'long stay agreement':
[A] residential park tenancy agreement
(a)for a fixed term of 3 months or longer; or
(b)for a periodic tenancy that continues for 3 months or longer;
other than an agreement entered into for the purpose of
(c)conferring on an individual the right to occupy a site or other park premises in a residential park for a holiday[.]
The term 'periodic tenancy' is not defined in the RP Act, but is known at common law as a tenancy agreed between the parties from period to period, from one fixed date to another, and can only be terminated at the end of any period by the issue of a notice to quit: Queen's Club Gardens Estates Ltd v Bignell [1924] 1 KB 117 at 124, and 134; Burnham v Carroll Musgrove Theatres Ltd [1928] 41 CLR 540 at 555.
A 'residential park tenancy agreement' is defined in the Glossary to the RP Act as:
[A]n agreement made between an individual and a park operator under which the park operator for valuable consideration grants to the individual
(a)the right to occupy a relocatable home provided by the park operator on a site in the residential park; or
(b)the right to occupy a relocatable home provided by the individual on a site in the residential park[.]
The following terms also carry definitions which are contained in the Glossary to the RP Act.
A 'residential park' is defined as 'a caravan park in which there are longstay sites'.
A 'park operator' is relevantly defined as 'the grantor of a right of occupancy under a residential park tenancy agreement'.
A 'relocatable home' is relevantly defined as 'a vehicle, building, tent or other structure that is fitted or designed for use as a residence (whether or not it includes bathroom or toilet facilities) and that is or can be parked, assembled or erected on a site in a residential park'.
A 'site' is relevantly defined as 'an area of land in the park that is set aside for the use of one relocatable home'.
The term 'park premises' is relevantly defined to mean 'all or any part of the land and structures within the boundaries of the park, … vacant sites, vacant on-site homes, agreed premise and shared premises'.
No issue has been raised by the parties that:
(a)the owners are entitled to grant a right of occupancy to a site or other park premises in the caravan park;
(b)the caravan park has long-stay sites (indeed this is inferred from the owners' evidence that they have 'permanent residents' at the caravan park);
(c)bay 19 is an area within the caravan park set aside for use of one relocatable home or is otherwise within the boundaries of the caravan park; and
(d)the relocatable home (that is, caravan and 'annexe') parked or erected on bay 19 was provided by the occupant.
Thus the issues in contest are:
(a)whether there has been a grant of a right of occupancy for a fixed term of, or for a periodic tenancy that continues for, three months or longer; and
(b)whether the agreement was entered into for the purpose of conferring on the occupant the right to occupy bay 19 for a holiday.
The occupant contends that he has been granted a periodic tenancy for three months or longer. The owners have disputed that they have granted a right of occupancy for a fixed term of three months or more on the basis that his occupancy has never been 'continuous'.
More significantly, the definition of long-stay agreement does not apply to any agreement (of any term or duration) where the agreement was entered into for the purpose of, and the right of occupancy was granted for, a holiday.
On the face of the terms of the annual resident agreement, the purpose of the grant of occupancy is for 'holiday only', which is an agreement expressly excluded from the definition of 'long-stay agreement' and consequently the operation of the RP Act.

Grant of right of occupancy

The term 'occupy' is not defined in the RP Act. It is relevantly defined in the Macquarie Dictionary Online (as at 10 August 2020) as:
1.to take up (space, time, etc.).
…
3.to take possession of (a place), as by invasion.
…
5.to be resident or established (in a place) as its tenant; to tenant[.]
In the present case, the terms of the annual resident agreement do not expressly state, but it is inferred and does not seem controversial, that the occupant was granted the right to take up the space at bay 19 to park, assemble and erect his caravan park upon entering the annual resident agreement. He and three other nominated persons were also granted the right to use the caravan, with any additional persons being subject to additional charges.
The annual resident agreement provides for occupation for a noncontinuous period of 139 days, which cumulatively equates to more than three months (on the basis that three months is the equivalent of a quarter of a year, which amounts to 91.25 days).
The RP Act is silent on whether a long-stay agreement can have a term (or duration) of three months or more where the days comprising that period are not continuous. In cases involving leases, there is authority that the duration of a lease need not be continuous, albeit in a different leasing context to a residential lease: Smallwood v Sheppards [1895] 2 QB 627 at 630.
In the Second Reading Speech to the Residential Parks (LongStay Tenants) Bill 2005 (Western Australia, Parliamentary Debates, Legislative Assembly, 20 October 2005 (J.C. Kobelke, Minister for Consumer and Employment Protection)) the Minister stated that:
The bill implements a government election commitment to provide greater contractual certainty for long-term residents of caravan parks and for the proprietors of those facilities … The findings [on the review of the Residential Tenancies Act 1987, which has regulated rental agreements in caravan parks] clearly established that community living in caravan parks needs to be treated differently from the traditional tenant-landlord relationship.
…
Caravan parks offering long-stay accommodation for residents are called 'residential parks' in the government's bill. This term acknowledges that these parks generally provide a long-term sole or principal place of residence for people living in the park[.]
…
The government's bill is designed to protect all those living long term in residential parks by giving them certainty about key aspects of their tenancy. We have taken the reasonable view that when people stay in caravan parks for less than three months, they are there for a holiday or for a short-term purpose only[.]
There is no requirement under the RP Act that a tenant occupy the relocatable home in the caravan park as his or her sole or principal place of residence. Nevertheless, in the face of ambiguity over how a term (or duration) of a long-stay agreement under the RP Act is to be constituted, the legislature's intention to apply the RP Act to those 'living' in residential parks as opposed to holidaymakers, as evident from the Second Reading Speech, is relevant to this exercise in statutory construction. It supports a construction that the term of a long-stay agreement comprises continuous days, which accordingly excludes the parties' occupancy agreement from the operation of the RP Act.
However, what occurred after entry into the annual resident agreement may have overtaken the original intention of the parties as to the term of the annual residency agreement.
The owners concede that they extended the period of time for which the occupant was granted occupancy beyond 139 days, although they did not specify the period of extension or when it was granted.
There was a noticeable increase in fees charged in July 2019 from $1,246.56 to $1,860 per quarter. Further, the occupant submitted his credit card statement indicating a payment of $1,921.16 was paid to the owners on 18 January 2019 (as he did not have an invoice for January 2019), suggesting that, discounting an amount akin to his electricity reading for April-June 2019 (which was $85.36), he was charged $1,860 per quarter for his occupancy from January 2019.
This indicates that the extension to the period of occupancy was granted at least from January 2019.
Whilst the owners contest that the occupant's period of occupation was over continuous days, there is no evidence that his occupancy was confined to further fixed dates as it was under the annual resident agreement.
Indeed, there is evidence that the occupant's caravan (with his belongings) remained in bay 19 at least since January 2019. In an email responding to the occupant's request to remove his expensive tools and musical equipment for fear that they would be compromised, the owners stated that they found his comments 'offensive and completely unfounded given you have been away for long periods before with your belongings remaining safe'.
The fact that the occupant did not, in fact, live in his caravan for one continuous period is not determinative, as the occupant still effectively took up the physical space and possession of bay 19 with his caravan (and his belongings) over a continuous extended period and would have been able to live in the caravan with no apparent restrictions on the days of occupancy.
The owners' contention that they had told the occupant that he was not a permanent resident whenever he came to the caravan park office to pay any monies does not assist their argument, as it is not clear that they had explained to him (or, for that matter, the Tribunal) the distinction between a permanent resident arrangement and the parties' occupancy agreement (as varied) after January 2019.
The Tribunal is therefore satisfied that from January 2019 there had been a variation to the occupancy agreement between the parties which granted the occupant the right to continuous days of occupation of bay 19.
In the absence of any evidence that the occupancy agreement was extended to an agreed fixed date, the Tribunal finds that, by the issue of quarterly invoices to the occupant, the agreement was extended from quarter to quarter as a 'periodic tenancy' within the meaning of s 5(1)(b) of the RP Act.
Consistent with the Tribunal's construction in [41] above, the Tribunal also finds that 'periodic tenancies' which come under the second limb of the definition of 'long-stay agreement' are occupancy agreements that have been renewed from period to period, over a total duration of three months or more.
As the total duration for which the agreement was extended covered the occupancy period January to December 2019, which is a period greater than three months this satisfies the second limb of the definition of 'longstay agreement' under s 5(1) of the RP Act of a periodic tenancy of three months or more.

For the purpose of holiday only

The annual resident agreement expressly states upon entry into the agreement that the occupant has become an 'Annual Resident (holidays only)' (emphasis added).
Further, it is significant that, of the 139 days of occupancy granted under the annual resident agreement, about 82% of those days (114 days) are fixed to every weekend and public holidays, with the balance of 25 days to be taken at any other time during the year (it would seem) at the election of the occupant.
The allocation of the majority of the days of occupancy under the annual resident agreement to weekends and public holidays strongly supports that interpretation that the grant of occupancy under the annual resident agreement is for the purpose of holiday only.
However, from January to December 2019, the grant of occupancy to periods beyond the 139 days to continuous occupation changed the nature of the agreement to one which was beyond a mere holiday occupancy.
The owners said they agreed to extend the period of occupancy due to the occupant's reasons that he had a varied fly-in fly-out roster and his wish to spend more time at the caravan park with his family members. The owners stated that in the interest of his family life they reluctantly agreed to extend the period of occupancy.
The occupant has not provided evidence refuting the owners' evidence of the reason for the extension to the days of occupancy other than submitting evidence of his martial hardship and temporary separation, which is insufficient for the Tribunal to find that such issues were communicated to the owners as reasons for extending the days of occupancy.
Ultimately, however, the Tribunal finds it difficult to reconcile the terms and purpose of the annual resident agreement (that being for holiday only) with the new terms of the occupancy arrangement from January 2019, where the occupant was granted a right to occupy bay 19 with his caravan for a continuous and lengthy period of time within the year, which period may have remained unbroken but for the altercation in December 2019.

The Tribunal also finds it doubtful that the grant of occupancy of a site for the majority of a year (which is a far cry from occupancy for 139 days a year confined predominantly to weekends and public holidays) could be consistent with the purpose of an annual resident agreement.
Accordingly, the Tribunal is not satisfied that from January 2019 the agreement between the parties was for the purpose of holiday only.

Conclusion

In light of the Tribunal's findings above, it is satisfied that from January 2019 the agreement between the parties constitutes a long-stay agreement as a periodic tenancy which continued for three months or longer for the purposes of the RP Act.

Orders

The Tribunal will make the following orders:
1.The preliminary question: 'Is the agreement between the parties a 'long-stay agreement' for the purposes of the Residential Parks (Longstay Tenants) Act 2006 (WA)' is answered in the affirmative.
2.The matter is listed for a directions hearing at 9.30 am on 27 August 2020 at 565 Hay Street, Perth, Western Australia for further directions.
3.The parties are to attend the directions hearing by telephone using a telephone number provided to the Tribunal in writing at least seven business days prior to the directions hearing.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS K Y Loh, MEMBER
12 AUGUST 2020