Miller v Brown - [2010] WADC 102

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: MILLER -v- BROWN & ORS [2010] WADC 102

CORAM: DAVIS DCJ

HEARD: 31 MAY 2010

DELIVERED : 2 JULY 2010

FILE NO/S: ALB CIV 4 of 2009

BETWEEN: GREGORY MICHAEL MILLER
Appellant
AND
STUART BROWN
First Respondent
GORDON KEAY
Second Respondent
BRIAN MARSHALL
Third Respondent
BRENDA PIMLOTT
Fourth Respondent
JACK RICKS
Fifth Respondent
GRAHAM GREAY
Sixth Respondent
ARTHUR CRABBE
Seventh Respondent
RODNEY ALLISTER
Eighth Respondent
MERVYN GOODCHILD
Ninth Respondent
DAMIEN PAVY
Tenth Respondent
PAUL NARDUCCI
Eleventh Respondent
BRIAN MARRIS
Twelfth Respondent
PETER BACKSHALL
Thirteenth Respondent
IAN COUGHLIN
VALERIE COUGHLIN
Fourteenth Respondent
JOHN MORTIMER
Fifteenth Respondent
WILLIAM LOVE
Sixteenth Respondent
BRIAN SHUGG
Seventeenth Respondent
MARGARET TRIPLETT
Eighteenth Respondent
LEONARD LITTLE
JOAN LITTLE
Nineteenth Respondent
GEORGE BENNETT
MARGARET BENNETT
Twentieth Respondent
ROSE TRIPLETT
Twenty First Respondent
BARRY THOMAS
Twenty Second Respondent
SHANE DAVIS
Twenty Third Respondent

Catchwords:

Appeal from Magistrates Court - Decision that Magistrates Court had no jurisdiction to hear application under the Residential Tenancies Act 1987 - Right of appeal and limited right of judicial review under the Residential Tenancies Act 1987 - Jurisdiction of the District Court to hear appeal - Meaning of "premises" and "residential tenancy agreement" - Whether there was a residential tenancy agreement

Legislation:

Magistrates Court (Civil Proceedings) Act 2004, s 10, s 43
Magistrates Court Act 2004, s 36
Residential Tenancies Act 1987, s 26

Result:

Appeal allowed

Representation:

Counsel:

Appellant:     Mr P Bevilacqua
First Respondent     :     No appearance
Second Respondent     :     No appearance
Third Respondent     :     No appearance
Fourth Respondent     :     No appearance
Fifth Respondent     :     No appearance
Sixth Respondent     :     No appearance
Seventh Respondent     :     No appearance
Eighth Respondent     :     No appearance
Ninth Respondent     :     No appearance
Tenth Respondent     :     No appearance
Eleventh Respondent     :     No appearance
Twelfth Respondent     :     No appearance
Thirteenth Respondent     :     No appearance
Fourteenth Respondent     :     No appearance
Fifteenth Respondent     :     No appearance
Sixteenth Respondent     :     No appearance
Seventeenth Respondent     :    No appearance
Eighteenth Respondent     :     No appearance
Nineteenth Respondent     :     No appearance
Twentieth Respondent     :     No appearance
Twenty First Respondent     :    No appearance
Twenty Second Respondent     :    No appearance
Twenty Third Respondent :     No appearance

Solicitors:

Appellant:     Thompson Legal Pty Ltd
First Respondent     :     HHG Legal Group
Second Respondent     :     Not applicable
Third Respondent     :     HHG Legal Group
Fourth Respondent     :     HHG Legal Group
Fifth Respondent     :     Not applicable
Sixth Respondent     :     HHG Legal Group
Seventh Respondent     :     Not applicable
Eighth Respondent     :     HHG Legal Group
Ninth Respondent     :     HHG Legal Group
Tenth Respondent     :     HHG Legal Group
Eleventh Respondent     :     HHG Legal Group
Twelfth Respondent     :     HHG Legal Group
Thirteenth Respondent     :     HHG Legal Group
Fourteenth Respondent     :     Not applicable
Fifteenth Respondent     :     HHG Legal Group
Sixteenth Respondent     :     HHG Legal Group
Seventeenth Respondent     :    Not applicable
Eighteenth Respondent     :     Not applicable
Nineteenth Respondent     :     HHG Legal Group
Twentieth Respondent     :     HHG Legal Group
Twenty First Respondent     :    HHG Legal Group
Twenty Second Respondent     :    HHG Legal Group
Twenty Third Respondent :     Not applicable

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

Austin Park Pty Ltd v Canon Foods Services Pty Ltd [2001] WADC 227
Cohen-Hallaleh v Cyril Rosenbaum Synagogue Pty Ltd [2003] NSWSC 395
Commissioner of State Revenue v TEC Desert Pty Ltd [2009] WASCA 128
Commonwealth Life (Amalgamated) Assurance Ltd v Anderson (1945) 46 SR (NSW) 47
De Alwis v Department of Housing and Works t/as HomesWest [2006] WASC 14
Gardiner v Sevenoaks Rural District Council [1950] 2 All ER 84
Integrated Computer Services Pty Ltd v Digital Equipment Corporation (Aust) Pty Ltd (1988) 5 BPR 11,110
Lighting By Design (Aust) Pty Ltd v Cannington Nominees Pty Ltd (2008) 35 WAR 520; [2008] WASCA 23
Lim v Chen [2007] WADC 83
Lombardo v Development Underwriting (WA) Pty Ltd [1971] WAR 188
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Murcia & Associates (a firm) v Grey & Ors [2001] WASCA 240
North Shore Gas Co Ltd v Commissioner of Stamp Duties (NSW) (1940) 63 CLR 52
Norton v Knowles [1967] 3 All ER 1061
Prudential Assurance Co Ltd v London Residuary Body [1992] 2 AC 386
Public Service Association (SA) v Federated Clerks' Union (SA Branch) (1991) 173 CLR 132
Radaich v Smith (1959) 101 CLR 209
Rayney v AW [2009] WASCA 203
Re Burton; Ex parte Lowe & Anor [2003] WASCA 306
Re Burton; Ex parte Rowell & Anor [2006] WASC 277
Re Glynn; Ex parte Royle & Ors [2003] WASCA 122
Rommelag AG v Delta West Pty Ltd (1995) 57 FCR 112
Saldanha v Fujitsu Australia Ltd [2010] WASC 105
Stone James & Co v Investment Holdings Pty Ltd [1987] WAR 363
Wacando v Commonwealth (1981) 148 CLR 1

DAVIS DCJ: This appeal is from an order of Magistrate Hamilton made on 29 June 2009 dismissing a number of applications brought by Mr Gregory Miller, the appellant, pursuant to the Residential Tenancies Act 1987 against each of the 23 respondents to this appeal. Mr Miller's applications were dismissed after the Magistrate decided that there was no jurisdiction under the Residential Tenancies Act for the Magistrates Court to determine Mr Miller's applications.

Background

Mr Miller owns property at Dillon Bay, Kent Location 95, the subject of Certificate of Title Volume 1188 Folio 458. Mr Miller inherited this land under the terms of the will of his father, John Miller, who died on 7 October 1999. Mr Miller became the registered proprietor of the land on 29 November 2000.
Each of the respondents to this appeal occupy defined "lots" on the land. They paid an annual rent in accordance with an arrangement that they made with the late John Miller. He had set up a "village" community on the land, allowing friends and family members to build residences on the land on an allocated "lot". Although John Miller "subdivided" the land into these lots, and gave all the lots a number, none of this conformed to town planning and zoning laws or regulations. The land is still zoned rural. The Magistrate in her reasons found from the material before her that the late John Miller "had wanted like‑minded people to enjoy the surrounding geography in a quiet and peaceful rural locality and in a simple manner" and that "he vetted those who wished to build in the community in order to maintain some sort of control over who occupied the properties." (T4)
The Magistrate observed that some of the respondents had some evidence in writing of the arrangement made with John Miller. The Magistrate found that the arrangements entered into were "formalised in writing or formalised by handshake with the individuals concerned to lease that land and construct residences on that, that those persons could sell or pass onto others by way of inheritance or … by way of sale." (T6)
Some of the respondents are those who originally built the residences on the lots on the land. Some of the respondents acquired the residences either through inheritance or purchase. One of the respondents, the twenty third respondent Mr Shane Davis, purchased his residence from Mr Miller. Where building took place, the application for Shire approval and building licence was made by and issued to the occupant of each lot, and not the late John Miller or Mr Miller. The respondents were found by the Magistrate to have paid to maintain the buildings, paid outgoings and individually and collectively paid for infrastructure such as roads and water to their residences. The occupants also paid Shire charges, including a charge for the establishment of rebroadcast facilities for ABC and commercial television and FM radio in the area.
In 2006 Mr Miller instituted separate proceedings against each of the 23 respondents in the Magistrates Court, by way of an Application for Court Order Form 12 pursuant to the Residential Tenancies Act. By that application Mr Miller defined the "Address of rented premises" as the lot number which each respondent occupied on the land and Mr Miller sought an order for "termination of agreement and possession of the premises pursuant to s 72(2) of the Residential Tenancies Act". In "Reasons for Application" attached to each application Mr Miller stated that he was desirous of returning the land to its original usage of primary production. The orders sought were on the grounds that each respondent's fixed term tenancy of the premises had expired on 30 June 2006 and the respondent "refuses to deliver up vacant possession of the premises". This was based on the expiry of a lease agreement said to have been entered into by a letter dated on or around 26 July 2005 whereby Mr Miller agreed to grant a lease to each respondent for a period of one year, commencing 1 July 2005 and expiring 30 June 2006. As against some of the respondents, there was also a claim for outstanding rental and electricity charges. Details of each application are set out in Sch 1 to these reasons.
The proceedings in the Magistrates Court had a long history. They were not pursued while the respondents brought Supreme Court proceedings against Mr Miller. Those Supreme Court proceedings were, for reasons unknown to me, discontinued. Mr Miller then pursued the Residential Tenancies Act proceedings in the Magistrates Court.
There was a preliminary issue to be determined in these Residential Tenancies Act proceedings, and that was whether the Magistrates Court had the jurisdiction to hear and determine Mr Miller's applications. Pursuant to the Magistrates Court (Civil Jurisdiction) Act 2004 s 6(e), the Magistrates Court has jurisdiction, subject to the Residential Tenancies Act, over a claim to recover possession of real property where the gross annual rental of the property is not more than the jurisdictional limit (which is currently $75,000). The question of jurisdiction turned on whether the arrangement made between Mr Miller and each respondent was a "residential tenancy agreement" within the meaning of the Residential Tenancies Act.
This preliminary issue of jurisdiction was determined by Magistrate Hamilton on 29 June 2009. The Magistrate stated that an agreement to occupy a residence is an agreement to occupy a residence owned by someone other than the tenant, that is, it must be a property owned by a person or another body entering into the agreement with the tenant. The Magistrate found that when the agreements or arrangements with the late John Miller were made there were no premises in existence, that the respondents (or their predecessors) had at their own cost constructed the buildings on the land, maintained the buildings and individually and collectively provided infrastructure for the lots and their respective premises, and neither the late John Miller nor Mr Miller owned the residences. The Magistrate held that, because the respondents owned the residences, there was no tenancy agreement for residential premises and therefore there was no jurisdiction to bring the matter before the Magistrates Court pursuant to the Residential Tenancies Act. The Magistrate dismissed every one of Mr Miller's applications brought under that Act.
By notice of appeal filed in the District Court on 16 July 2009, Mr Miller appealed the orders made by Magistrate Hamilton. By the notice of appeal Mr Miller seeks orders, in effect, quashing the decision of the Magistrate on the issue of jurisdiction with a specific order that "the proceedings be remitted back to the Magistrates Court of Western Australia to be determined according to law".
Before I consider this appeal, there is a threshold question as to whether I have jurisdiction to hear it. This was not something that was apparent from the appeal notice and the submissions, both written and oral, made on behalf of Mr Miller at the appeal hearing. (None of the respondents appeared at the appeal hearing, most having indicated beforehand that they would abide by this Court's decision on the appeal and intended to take no part in the hearing, save to be heard on the question of costs). The question of jurisdiction is something which I raised upon reviewing the matter and particularly the whole of the Residential Tenancies Act, and the provisions of that Act which deal specifically with appeals. I must be satisfied that I have jurisdiction to hear this appeal: Murcia & Associates (a firm) v Grey & Ors [2001] WASCA 240 at [14]. I invited written submissions on this point to be filed.

The District Court jurisdiction to hear this appeal

The Magistrate had the power to consider the preliminary issue of law as to whether or not Mr Miller's applications fell within the Residential Tenancies Act and therefore within the Magistrate Court's jurisdiction: s 10 of the Magistrates Court (Civil Proceedings) Act; see also Re Glynn; Ex parte Royle & Ors[2003] WASCA 122 at [3] ‑ [6].
Mr Miller has argued that the Magistrate decided this preliminary issue of jurisdiction erroneously. The question then arises as to what is the consequence of the decision and Mr Miller's right of appeal.
Section 26 of the Residential Tenancies Act provides:
"(1)An order made by a court under this Act is final and binding to all parties to the proceedings in which the order is made and on all persons who under this Act could have become entitled to be joined as a party to the proceeding in which the order is made, and no appeal shall lie in respect thereof.
(2)No declaratory judgment shall be given and no order shall be made under section 36 of the Magistrates Court Act 2004 in respect of proceedings taken or to be taken under this Act in the Magistrates Court or any order made in such proceedings by that court, unless the Supreme Court is satisfied that the Magistrates Court has or had no jurisdiction conferred by or under this Act in respect of the proceedings or that a party to the proceedings has been denied natural justice."
Section 36 of the Magistrates Court Act 2004 is a statutory substitute for judicial review that would otherwise be sought by way of prerogative writ (mandamus, prohibition or certiorari). If a person is aggrieved by the failure of a court officer to do any act or make any order or direction on any ground that might have justified an order of mandamus, or the person is aggrieved by an act, order or direction of a court officer on any ground that might have justified an order of prohibition or certiorari, that person may apply to the Supreme Court for a review order pursuant to s 36 of the Magistrates Court Act. The scheme and purpose of s 36 was explained by McLure JA in Rayney v AW [2009] WASCA 203 at [25] ‑ [28].
When a Magistrate makes an order or does an act that involves jurisdictional error, the aggrieved party may have a choice between invoking a right of appeal or seeking a judicial review: Saldanha v Fujitsu Australia Ltd [2010] WASC 105 at [18]. That is recognised by the provisions of s 36(5)(b) and s 36(7) of the Magistrates Court Act. Section 36(5)(b) allows the Supreme Court to order that the application for a review order be treated as if it were an appeal, if the Supreme Court considers that an appeal lies. Section 36(7) allows the District Court to remit an appeal to the Supreme Court if the District Court considers that a review order ought to be made.
What is sought in this appeal overlaps with relief that might be granted pursuant to a review order in the nature of mandamus. An order in the nature of mandamus will usually be available where there has been an error which amounts to a refusal or failure, whether actual or constructive, to exercise jurisdiction. If a tribunal wrongly holds it has no jurisdiction or is not authorised to make a particular decision, there is said to be "an actual failure to exercise jurisdiction" to which mandamus applies: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [41].
The option to have this appeal remitted to the Supreme Court pursuant to s 36(7) of the Magistrates Court Act is not open to me because of the express words of s 26 of the Residential Tenancies Act. In disputes concerning residential tenancies, s 26(2) gives a limited right to judicial review. The Supreme Court has jurisdiction on such a review only if satisfied that the Magistrate had or has no jurisdiction to determine the proceedings (a limited form of jurisdictional error) or that there has occurred a denial of natural justice to any party to the proceedings: see Re Burton; Ex parte Lowe & Anor [2003] WASCA 306 at [61]; Re Burton; Ex parte Rowell & Anor [2006] WASC 277 at [4]; De Alwis v Department of Housing and Works t/as HomesWest [2006] WASC 14 at [19]. So far as jurisdictional error is concerned, s 26(2) provides for erroneous assumptions of jurisdiction to be checked by judicial review, but not erroneous refusals to exercise jurisdiction: see Public Service Association (SA) v Federated Clerks' Union (SA Branch) (1991) 173 CLR 132 at 141 ‑ 142, 160 ‑ 161. The Magistrate's decision here was of the second type, that is a refusal to exercise jurisdiction which, as Mr Miller submits, was erroneous. A refusal to exercise jurisdiction, pursuant to s 26(2) of the Residential Tenancies Act, cannot be the subject of judicial review.
It is therefore necessary for me to determine whether, in respect of the Magistrate's decision on jurisdiction, Mr Miller has a general right of right of appeal pursuant to s 40 of the Magistrates Court (Civil Proceedings) Act, which allows an appeal against any order made by the Magistrates Court in the course of proceedings in a case, or whether that provision does not apply because of s 26(1) of the Residential Tenancies Act. In disputes concerning residential tenancies, s 26(1) expressly excludes any right of appeal from an order made "under the Act".
In submissions filed on behalf of Mr Miller addressing this issue of the District Court's jurisdiction to hear this appeal, it has been submitted that at no time was jurisdiction under the Residential Tenancies Act exercised as there was no order made by the Magistrates Court under the Act, so that s 26(1) could not apply to prevent an appeal from that court to the District Court. I understand this submission to mean that since the Magistrate's decision was one concerning jurisdiction, and not a decision on the substantive issues, it was not an order made in the exercise of jurisdiction under the Residential Tenancies Act.
No authority was referred to in support of that proposition, but there is authority that an interlocutory decision on a procedural matter to do with a copyright claim is not a decision under Pt V of the Copyright Act 1968 (Cth): see Rommelag AG v Delta West Pty Ltd (1995) 57 FCR 112. In this Court, it has also been held by Keen DCJ that a dismissal of a matter for want of jurisdiction is not a decision under Pt V of the Copyright Act:Lim v Chen [2007] WADC 83. In my view, an order made after consideration of whether or not Mr Miller's applications fell within the Residential Tenancies Act, and therefore within the jurisdiction of the Magistrates Court, is not an order "made by a court under this Act" as referred to in s 26(1) of the Residential Tenancies Act. It is an order made under the Magistrates Court (Civil Jurisdiction) Act s 10.
In my view the District Court has jurisdiction to hear this appeal from the Magistrate's order dismissing Mr Miller's applications.

The determination of this appeal

It is the case that the arrangements made and the "village" community established by the late Mr John Miller are unusual. I recognise the difficult situation in which the respondents find themselves as a result of the arrangements made during John Miller's lifetime. Mr Miller is similarly in a difficult situation. The submissions made, both to the Magistrates Court and this Court, outline some of the difficulties and the emotional consequences for those involved. I must, nonetheless, consider and apply the law.

The evidence before the Magistrate

The Magistrate had regard to material which, pursuant to s 40(4)(a) of the Magistrates Court (Civil Proceedings) Act, I must take into account in this appeal.
Those materials are not on the Magistrates Court files in any formal way, but were received informally. Pursuant to s 21 of the Residential Tenancies Act the Magistrates Court was not bound by the rules of evidence but could inform itself upon any matter relating to the proceedings in such manner as it thought fit. I note from the transcript of the proceedings on 29 June 2009 that the Magistrate recorded that the solicitors for Mr Miller had an opportunity to view all of the material sent to the Court and to make copies of what they considered to be of use (T2).
I have set out in Sch 2 attached to these reasons the materials in the Magistrate Court files. (Not all of the files have evidentiary material on them.) The seventh and seventeenth respondents, Mr Crabbe and Mr Shugg and also Mr Miller provided further materials in this appeal. I grant leave to admit some of that material pursuant to s 40(4)(b) of the Magistrates Court (Civil Proceedings) Act, particularly as Mr Crabbe and Mr Shugg are not legally represented. I have listed the further material admitted, and to which I have had regard, also in Sch 2. The material which I have admitted consists of documents which I consider could not be the subject of contention. I do not admit as evidence in this appeal, nor have I had regard to, other documents which Mr Miller has provided, such as "To Whom it May Concern" statements from others and legal advice, which I consider may be contentious.
From the materials it is apparent that the residences built originally began as holiday "shacks", although judging from the photographs some of them are now substantial residences. The agreement made between Mr Miller and the twenty third respondent Mr Shane Davis, by a deed dated 15 May 2003, records in Recital C that the late Mr (John) Miller "permitted people to build holiday shacks on the Dillon Bay Property" and that Mr Davis had been residing on the holiday shack constructed on Lot 6. The Residential Tenancies Act does not apply to an agreement that is bona fide entered into for the purpose of conferring on a person a right to occupy premises for a holiday, but if the right to occupy exceeds a term of three months, it shall be deemed, in the absence of proof to the contrary, not to have been entered into bona fide for the purpose of conferring a right to occupy the premises for a holiday: see s 5(3)(e) and s 5(4). If there is proof to the contrary, ie, there is some evidence that even though the premises were for a fixed term longer than three months their principal purpose is that of holiday premises, the Residential Tenancies Act will not apply: see Re Glynn; Ex parte Royle (supra) at [65] ‑ [70]. That is not a matter which was addressed before the Magistrate and there is no proof to the contrary. I will therefore address this appeal on the basis that the deeming provision of s 5(4) applies and the agreements were not entered into bona fide for the purpose of conferring the right to occupy the premises for a holiday.

Did the Magistrate err at law?

The submissions made on behalf of Mr Miller are that the Magistrate erred in concluding that there was no "residential tenancy agreement" because this conclusion was reached, having regard to the Magistrate's extempore reasons as appears in the transcript:
1.After limiting the construction of "residential tenancy agreement" by having regard to the preamble or long title to the Residential Tenancies Act.
2.After construing the meaning of "owner", without regard to the definition of "owner" in the Residential Tenancies Act and applying the dictionary definition of "owner" to conclude that when the Residential Tenancies Act refers to an owner, it is talking about the owner of a building that will constitute residential premises (T9).
3.On the basis that there was no "residential tenancy agreement" because each residence belonged to a respondent, not Mr Miller. Relevant to this submission made on behalf of Mr Miller, I observe that the Magistrate stated that "it is a matter for commonsense that an agreement to occupy a residence is an agreement to occupy a residence owned by someone other than the tenant. That is, it must be a property owned by a person or another body entering into the agreement with the tenant" (T10). That and following passages in the transcript reveals the Magistrate's reasoning was that the right given by Mr Miller was not the right to occupy residential premises, but the right to occupy the land on which the residences belonging to each respondent had been built (T10 and T11). On behalf of Mr Miller it has been submitted that one cannot have a right to occupy residential premises without a right to occupy the land upon which those premises are situated. "Residential premises" cannot just mean the structure of a residence; it must encompass the land upon which the residence is situated, otherwise there can be no real right of occupation provided. Having regard to the definition of "residential tenancy agreement" there was an agreement, there was a payment of money and in return for that each respondent was granted a right to occupy the residential premises. Only Mr Miller could have granted the right to occupy those premises, as he owned the land.
I will review each of these issues in turn and consider whether there has been an error of law.

Statutory construction – the preamble and purpose of the Act

The long title to the Residential Tenancies Act states that it is:
"An Act to regulate the relationship of owners and tenants under residential tenancy agreements, to consequentially amend certain Acts and for connected purposes".
The preamble or long title to an Act can be taken into account when construing a part of a written law, although it should not be used to limit or cut down the meaning of a specific part of the statute: Wacando v Commonwealth (1981) 148 CLR 1 per Gibbs CJ at 15 ‑ 16. I do not understand the Magistrate in her reasons, however, to have used the preamble to limit her interpretation of "residential tenancy agreement".

The definition of "owner" under the Residential Tenancies Act?

"Owner" is defined in s 3 of the Act to mean "the grantor of a right of occupancy under a residential tenancy agreement or his successor succeeding subject to the interest of the tenant".
I consider that the Magistrate erred in law in not taking into account this statutory definition and instead applying a dictionary definition of "owner". It was necessary for the Magistrate to have regard to all definitions in the Residential Tenancies Act when determining whether there was a "residential tenancy agreement".

The definition of "residential tenancy agreement"

In s 3 of the Residential Tenancies Act, in addition to "owner", the following terms are defined:
1."premises" includes any part of premises and any land and appurtenances appurtenant to premises;
2."residential premises" means premises that constitute or are intended to constitute a place of residence;
3."residential tenancy agreement" means any agreement, whether express or implied, under which any person for valuable consideration grants to any other person a right to occupy, whether exclusively or otherwise, any residential premises or part of residential premises, for the purpose of residence.
The definition of "premises" refers to any part of premises but does not define the word "premises". The ordinary meaning of the word "premises" as defined in the Shorter Oxford English Dictionary, 6^th ed includes "a house or building with its grounds etc". It has been held in other disputes between a proprietor of land and an occupant on that land that "premises" so far as it applies to property, is not confined to a building or residence: see Gardiner v Sevenoaks Rural District Council [1950] 2 All ER 84 at 85; Norton v Knowles[1967] 3 All ER 1061. In Norton v Knowles (supra) the respondent occupied a caravan on land owned by the appellant. The caravan had been in position for 10 years and could not be easily moved. It had a garden and was surrounded and enclosed by a fence and connected to water, electricity and telephone. It was held that the premises on which the respondent was allowed to reside were the land and caravan taken together.
It is also apparent from the definition of "premises" in the Residential Tenancies Act that premises includes the land on which a building or structure is placed, as the definition includes "land and appurtenances appurtenant to premises". ("Appurtenances" is not defined but its dictionary meaning according the Shorter Oxford English Dictionary, 6^th ed, is "A minor property, right, or privilege, subsidiary or incidental to a more important one, an appendage".)
It is a relevant fact in this case that each residence is a fixture on the land owned by Mr Miller. The general rule regarding fixtures is that whatever is annexed to the land becomes part of it, although the parties may expressly agree that whoever attaches fixtures on the land retains ownership of them. Unless and until actually severed or removed from the land, the fixture remains part of that land: North Shore Gas Co Ltd v Commissioner of Stamp Duties (NSW) (1940) 63 CLR 52 per Dixon J at 67 ‑ 70; Commissioner of State Revenue v TEC Desert Pty Ltd [2009] WASCA 128 per McLure JA at [190], [218] ‑ [226] concerning tenant's fixtures.
There is nothing in the definition of "residential tenancy agreement" or any other provision in the Residential Tenancies Act which would exclude the Act's application to a situation where there is an agreement that part of the property or premises occupied is owned by the tenant and can be severed or removed by the tenant at the end of any period of occupation. Section 47 of the Act specifically envisages that a tenant may be given the right to affix fixtures, renovate, alter or add to premises and remove those improvements, with the consent of the owner, at the end of the agreement.
The definition of "residential tenancy agreement" is very wide. The agreement does not have to be in writing and can be oral or implied. The right to occupy does not have to be exclusive, so it covers both a lease and a licence arrangement. A finding that an agreement is not a lease does not mean it is not a "residential tenancy agreement" within that definition: see Cohen-Hallaleh v Cyril Rosenbaum Synagogue Pty Ltd[2003] NSWSC 395 at [15], considering a similar definition under the Residential Tenancies Act 1987 (NSW). The definition does not attempt to deal with anything beyond the existence of an agreement, the status of that agreement as the source of a grant of a right by one person to the other, the requirement that the grant be for valuable consideration, that the right granted is a right of occupation, that the nature of the premises is residential and the purpose of the occupation is for residence. If these elements are found to exist, the agreement is a "residential tenancy agreement", regardless of any other relationship that may exist between the parties: see Cohen-Hallaleh v Cyril Rosenbaum Synagogue Pty Ltd(supra) at [19] ‑ [21].
In the circumstances, having regard to the definitions in the Residential Tenancies Act and the law which I have outlined, I consider that the Magistrate erred in law in confining her consideration of the issue of whether there was a "residential tenancy agreement" by reference to the fact that each residence belonged to a respondent, not Mr Miller. The error arose because the Magistrate considered that the "premises" occupied by each respondent was confined to the residence or building. In holding that an agreement to occupy a residence is an agreement to occupy a residence owned by someone other than the tenant, the Magistrate failed to take into account that the definition of "premises" includes both the residence and the land on which the residence is built or stands. The land on which these residences have been built is, of course, land owned by Mr Miller. In order for the respondents to reside in their residences, they required a grant of occupation from Mr Miller. The Magistrate's error in this respect was compounded by not referring to the statutory definition of "owner". The "owner" is not just the owner of the building which forms part of the residential premises. The owner is the grantor of the right to occupancy.

Was there a "residential tenancy agreement" as defined under the Residential Tenancies Act?

I consider, having regard to the materials before the Magistrate, that the Magistrate ought to have found that there was a "residential tenancy agreement" between Mr Miller and the respondents, for the following reasons.
Contrary to what is set out in the Magistrate's findings, as I have set out in [4] above, there is no evidence of any formal written agreement between the late John Miller and the respondents. There is the document, which I will refer to as the "Tenancy Agreement", entitled "Miller Family Trust - Ompac Pty Ltd - Tenancy Agreement". This Tenancy Agreement refers to "the Trust" as landlord. The details of the tenant and tenancy are blank and the document is not signed. The period of tenancy offered is not specified, but stated to be a "perpetual tenancy" commencing 1 January 1983 at a rental to be determined from time to time by the Trust and until otherwise determined at $52 per annum. This raises issues of uncertainty and enforceability, as no term is specified, only a "perpetual tenancy". Further, Ompac Pty Ltd is not the owner of the land and Ompac Pty Ltd could not validly grant a lease: see Re Burton; Ex parte Rowell (supra).
What was signed by the late John Miller and issued to at least some of the respondents was a "certificate" in which it was stated that the named respondent "is guest resident" of the lot number and "remains owner and responsible for all articles fixed and detachable. Subject to Constitution." There is no evidence of a Constitution. This certificate, so far as it might be construed as a grant of occupancy, also raises issues of uncertainty and enforceability, since no term is specified.
After John Miller died and Mr Miller became registered proprietor of the land he continued to charge rent, with increases. Arrangements between Mr Miller and the respondents were not formally documented until Mr Miller's letter dated "on or about" 27 July 2005. By this letter upon which Mr Miller relies for the basis of his applications, he advised he had decided to grant a tenancy for 12 months commencing 1 July 2005 and expiring 30 June 2006. An example of the letter dated on or about 27 July 2005 is on the Magistrates Court files: see the letter to Mr and Mrs Jack Triplett, item 65 in Sch 2. From the materials there appears to be no issue that a letter in similar terms was sent to the other respondents. There is also no issue that on or about 17 January 2006 Mr Miller's solicitors served on the respondents notice requiring vacant possession on 1 July 2006. Both of these matters, that is Mr Miller's letter to the respondents dated 27 July 2005 and the notice dated 17 January 2006, were pleaded as facts in the respondents' statement of claim in the Supreme Court proceedings, par 31, although the respondents pleaded that the letter of 17 July 2005 "purported" to grant a tenancy of 12 months.
In the Supreme Court proceedings the respondents relied on the earlier arrangements made with the late John Miller, alleging that there was a 99 year lease or licence, and that was what was intended by the Tenancy Agreement. It was pleaded that John Miller provided the Tenancy Agreement to some of the respondents (statement of claim par 11.2) and that Mr Miller provided a copy to Mr Davis at the time of the deed dated 15 May 2003 (statement of claim par 24). The respondents also alleged that after Mr Miller inherited the land, by representations and conduct to the respondents and, in the case of Mr Davis, by the terms of the deed dated 15 May 2003, Mr Miller agreed to continue with those arrangements.
In the defence in the Supreme Court proceedings, Mr Miller denied this and pleaded that the respondents were all tenants at will and that he agreed to allow the respondents to continue to reside in their residences on a year to year basis only.
Although there are two conflicting versions of what was agreed between the parties I am able to make the following findings based on the materials which were before the Magistrate and as I have set out in Sch 2.
Given the arrangements allowing the respondents to build on the land, and the circumstances of the creation of the "village" with John Miller granting exclusive possession to the occupier of each lot, I find that this was not a licence situation: see Radaich v Smith (1959) 101 CLR 209.
As to the respondents' claim that they had an arrangement or agreement with John Miller for a 99 year lease or licence, even if this was accepted as a matter of fact, such an arrangement or agreement is for the occupation of a lot on the land for a period in excess of 10 years and made without the prior approval of the relevant planning body (either the Town Planning Board during the 1980's or, after 1985, the State Planning Commission), in breach of s 20 of the Town Planning and Development Act1928. Such an arrangement or agreement is, as a matter of law, illegal, void and unenforceable: see Stone James & Co v Investment Holdings Pty Ltd [1987] WAR 363 at 366, 379 – 381. "Do it yourself subdivisions" like that created by John Miller were put to an end by the Town Planning and Development Act: Lombardo v Development Underwriting (WA) Pty Ltd [1971] WAR 188 at 196.
As to the statements of the respondents that they were assured that they had a "perpetual" tenancy, it is not possible to grant a lease with an unlimited term or a "perpetual tenancy". The duration of the lease must be certain or ascertainable. An arrangement between the parties based on an oral agreement that the lease was "perpetual" or by reference to the Tenancy Agreement, which does not specify any certain term and refers only to a perpetual tenancy commencing 1 January 1983, is unenforceable for uncertainty: see Austin Park Pty Ltd v Canon Foods Services Pty Ltd [2001] WADC 227 at [19]; Prudential Assurance Co Ltd v London Residuary Body[1992] 2 AC 386. Similarly, to the extent that the "certificate" issued by the late John Miller might be considered a grant of occupancy or evidence of an agreement with the respondents, this also does not specify any certain term and is unenforceable for uncertainty.
If a person is in possession of property with the owner's consent but not by virtue of a tenancy for a certain term, a tenancy at will is implied: Austin Park Pty Ltd v Canon Foods Services Pty Ltd (supra) at [20]. Possession accompanied by payment of rent on a yearly basis would, at common law, create a periodic tenancy, although the situation of a periodic tenancy is now dealt with in s 71 of the Property Law Act 1969 which provides that no tenancy from year to year is implied by payment of rent.
I find that the respondents had no enforceable lease during John Miller's lifetime and given the provisions of s 71 of the Property Law Act 1969, they were accordingly tenants at will. That tenancy at will ended on the death of John Miller: see Megarry and Wade "The Law of Real Property" 6th ed Sweet & Maxwell 792 ‑ 794; Commonwealth Life (Amalgamated) Assurance Ltd v Anderson (1945) 46 SR (NSW) 47 at 49, 50.

Once Mr Miller inherited the land and became registered proprietor and permitted the respondents to remain on the land, charging rent, they became tenants at his will: Lighting By Design (Aust) Pty Ltd v Cannington Nominees Pty Ltd (2008) 35 WAR 520; [2008] WASCA 23 per Pullin JA at [4]; Le Miere JA at [120], [199] and [200].
As to the arrangement that the respondents say they had, based on Mr Miller's conduct or representations that he would continue with the arrangements the respondents had with John Miller, even if their evidence about that was accepted, an agreement on those terms is unenforceable pursuant to s 20 of the Town Planning and Development Act, for the same reasons as I have discussed at [49]. If it was the fact that Mr Miller agreed he would continue the "perpetual lease" arrangement made with John Miller, whether that was made orally or by reference to the Tenancy Agreement, that would also be unenforceable for the reasons I have discussed at [50], because there is no certain term. As the respondents remained in possession of their lots with Mr Miller's consent but not by virtue of a tenancy for a certain term, a tenancy at will is implied.
In 2003 Mr Miller indicated to the respondents, in particular by a notice dated 28 November 2003, that houses or shacks could no longer be sold, other than for material value and "No more lease agreements will be entered into and block lease will not be available for people buying in". The respondents were not happy and presumably made that known to Mr Miller. There appears to have been some meetings between Mr Miller and other members of his family and some of the residents in 2004 and 2005. In the materials before the Magistrate, some of the residents acknowledged that Mr Miller was entitled to possession of the land, but wanted compensation for the residences they had constructed: see for example the handwritten statement of Mr J Triplett dated 19 January 2005, documents 57 and 58 in Sch 2.
Mr Miller then sent to the respondents his letter dated on or about 27 July 2005, by which he granted to each of the respondents a lease for the 12 month period from 1 July 2005 to 30 June 2006. Following that letter the respondents continued to occupy the land and all but two of them paid increased rent as set out in that letter: see the details of the applications set out in Sch 1 to these reasons. The issue which arises is whether there was an agreement between Mr Miller and each respondent for a lease for the 12 month period specified, in accordance with Mr Miller's letter.
The existence of an agreement may be implied or inferred even though neither offer nor acceptance can be identified and even though the moment of formation cannot be determined: Lighting By Design (Aust) Pty Ltd v Cannington Nominees Pty Ltd (supra) at [90], [204], [205]; Integrated Computer Services Pty Ltd v Digital Equipment Corporation (Aust) Pty Ltd (1988) 5 BPR 11,110. The existence of a contract, and the identification and interpretation of its terms, are all approached on an objective basis. When deciding whether a contract has been made, the courts do not look to what the parties intended, but what they appear to have intended. Uncommunicated subjective beliefs or expectations of the parties are not relevant: Lighting By Design (Aust) Pty Ltd v Cannington Nominees Pty Ltd at [92], [207] and [208].
On the materials before the Magistrate, set out in Sch 2, there is no evidence of any of the respondents having raised with or communicated to Mr Miller any objection to his letter dated on or about 27 July 2005. The Supreme Court proceedings against Mr Miller were commenced only after the issue of the applications in the Magistrates Court by Mr Miller for possession. For those respondents who paid rent, their conduct in staying in possession and paying rent objectively indicates, and would be understood by any reasonable person to mean, that the respondents had agreed to the terms of Mr Miller's letter, namely a lease of the premises for a term of 12 months commencing 1 July 2005 and expiring 30 June 2006 for an annual rent as specified in that letter. From the details in Sch 1, only one respondent, the second respondent, did not pay rent. There was some part payment of rent by the first respondent. For the first and second respondents, the fact of their remaining in possession without full payment of the rent does not, in my view, indicate agreement with the terms of Mr Miller's letter. For those respondents a tenancy at will is implied, for the reasons I have already discussed at [53] and [54].
I find that the elements of a "residential tenancy agreement" as defined in the Residential Tenancies Act are all satisfied in respect of Mr Miller and the respondents in this case:
1.There was in existence an agreement, implied or inferred, between Mr Miller and each respondent.
2.By that agreement Mr Miller granted a right to each respondent.
3.The grant was for valuable consideration, in that rent was charged for that right.
4.The nature of the right was a right of occupation of the land or part of it, referrable to each lot number.
5.What was being occupied is premises, being the residence owned by each respondent and the land owned by Mr Miller, taken together.
6.The nature of the premises is residential premises or part of residential premises, occupied for the purpose of a residence.
As all of these elements exist, there is a relationship of landlord and tenant, regardless of any other relationship or issue, particularly any equitable issue, that may exist between Mr Miller and each respondent.
The fact that the respondents have built or purchased, and maintained, the residences on the land at their expense may give rise to a claim for compensation pursuant to the Residential Tenancies Act (see for example s 43), or the respondents may have a claim in equity against Mr Miller. This is not a matter which I must determine in this appeal. In my view, the fact that the respondents may have some claim against Mr Miller does not derogate from the fact that the respondents occupy premises, being the residence and Mr Miller's land taken together, pursuant to a "residential tenancy agreement" as defined in the Residential Tenancies Act.
I find that the Magistrates Court does have jurisdiction to determine the issue of possession in the applications brought by Mr Miller under the Residential Tenancies Act.
I will allow this appeal and order that each of the orders made on 29 June 2009 in Magistrates Court at Albany Action Nos RSTN 194, 195 and 197 to 217 of 2006 dismissing Mr Miller's application be set aside and the proceedings be remitted to the Magistrates Court to be determined according to law.
In relation to costs, none of the respondents have appeared at the hearing of the appeal, having indicated before the hearing that they would abide by this Court's decision. Some of the respondents (those who are legally represented) have indicated they wished to be heard on the question of costs of the appeal and filed submissions in that regard. I will hear from counsel for Mr Miller and consider the submissions of those respondents on the issue of what costs orders should be made.

SCHEDULE 1
DETAILS OF MAGISTRATES COURT APPLICATIONS

FIRST RESPONDENT: Stewart Brown – Albany RSTN 194 of 2006
Address of rented premises: Lot 10 East Section Dillon Bay Kent location 95.
Claim by Mr Miller is for:
1.Order for termination of agreement and possession of the premises pursuant to s 72(2) of the Residential Tenancies Act 1987;
2.Order for payment of outstanding electricity consumption charges of $32.86;
3.Order for payment of outstanding rental of $200.

Annual rent fixed by letter dated on or around 26 July 2005 is $600.
SECOND RESPONDENT: Gordon Keay – Albany RSTN 195 of 2006
Address of rented premises: Lots 8 and 9 East Section Dillon Bay.
Claim by Mr Miller is for:
1.Order for termination of agreement and possession of the premises pursuant to s 72(2) of the Residential Tenancies Act 1987;
2.Order for payment of outstanding electricity consumption charges of $34.49;
3.Order for payment of outstanding rental of $1,200.

Annual rent fixed by letter dated on or around 26 July 2005 is $1,200.
THIRD RESPONDENT: Brian Marshall – Albany RSTN 197 of 2006
Address of rented premises: Lot 14 East Section Dillon Bay.
Claim by Mr Miller is for:
1.Order for termination of agreement and possession of the premises pursuant to s 72(2) of the Residential Tenancies Act 1987;
2.Order for payment of outstanding electricity consumption charges of $50.40.

No claim for outstanding rental.
Annual rent fixed by letter dated on or around 26 July 2005 is $600.
FOURTH RESPONDENT: Brenda Pimlott – Albany RSTN 198 of 2006
Address of rented premises: Lot 17 East Section Dillon Bay.
Claim by Mr Miller is for:
1.Order for termination of agreement and possession of the premises pursuant to s 72(2) of the Residential Tenancies Act 1987.

No claim for outstanding rental or electricity costs.
Annual rent fixed by letter dated on or around 26 July 2005 is $600.
FIFTH RESPONDENT: Jack Ricks – Albany RSTN 199 of 2006
Address of rented premises: Lot 12A East Section Dillon Bay.
Claim by Mr Miller is for:
1.Order for termination of agreement and possession of the premises pursuant to s 72(2) of the Residential Tenancies Act 1987.

No claim for outstanding rental or electricity costs.
Annual rent fixed by letter dated on or around 26 July 2005 is $600.
SIXTH RESPONDENT: Graham Grey – Albany RSTN 200 of 2006
Address of rented premises: Lots 3 and 4 East Section Dillon Bay.
Claim by Mr Miller is for:
1.Order for termination of agreement and possession of the premises pursuant to s 72(2) of the Residential Tenancies Act 1987.

No claim for outstanding rental or electricity costs.
Annual rent fixed by letter dated on or around 26 July 2005 is $600.
SEVENTH RESPONDENT: Arthur Crabbe – Albany RSTN 201 of 2006
Address of rented premises: Lots 1 and 2 East Section Dillon Bay.
Claim by Mr Miller is for:
1.Order for termination of agreement and possession of the premises pursuant to s 72(2) of the Residential Tenancies Act 1987.

No claim for outstanding rental or electricity costs.
Annual rent fixed by letter dated on or around 26 July 2005 is $600.
EIGHTH RESPONDENT: Rodney Allister – Albany RSTN 202 of 2006
Address of rented premises: Lot 9 West Section Dillon Bay.
Claim by Mr Miller is for:
1.Order for termination of agreement and possession of the premises pursuant to s 72(2) of the Residential Tenancies Act 1987.

No claim for outstanding rental or electricity costs.
Annual rent fixed by letter dated on or around 26 July 2005 is $600.
NINTH RESPONDENT: Mervyn Goodchild – Albany RSTN 203 of 2006
Address of rented premises: Lot 5 West section Dillon Bay.
Claim by Mr Miller is for:
1.Order for termination of agreement and possession of the premises pursuant to s 72(2) of the Residential Tenancies Act 1987.

No claim for outstanding rental or electricity costs.
Annual rent fixed by letter dated on or around 26 July 2005 is $600.
TENTH RESPONDENT: Damien Pavy – Albany RSTN 204 of 2006
Address of rented premises: Lot 7 West Section Dillon Bay.
Claim by Mr Miller is for:
1.Order for termination of agreement and possession of the premises pursuant to s 72(2) of the Residential Tenancies Act 1987.

No claim for outstanding rental or electricity costs.
Annual rent fixed by letter dated on or around 26 July 2005 is $600.
ELEVENTH RESPONDENT: Paul Narducci – Albany RSTN 205 of 2006
Address of rented premises: Lot 11 West section Dillon Bay.
Claim by Mr Miller is for:
1.Order for termination of agreement and possession of the premises pursuant to s 72(2) of the Residential Tenancies Act 1987.

No claim for outstanding rental or electricity costs.
Annual rent fixed by letter dated on or around 26 July 2005 is $600.
TWELFTH RESPONDENT: Brian Marris – Albany RSTN 206 of 2006
Address of rented premises: Lot 6 West Section Dillon Bay.
Claim by Mr Miller is for:
1.Order for termination of agreement and possession of the premises pursuant to s 72(2) of the Residential Tenancies Act 1987.

No claim for outstanding rental or electricity costs.
Annual rent fixed by letter dated on or around 26 July 2005 is $600.
THIRTEENTH RESPONDENT: Peter Backshaw – Albany RSTN 207 of 2006
Address of rented premises: Lot 10 West Section Dillon Bay.
Claim by Mr Miller is for:
1.Order for termination of agreement and possession of the premises pursuant to s 72(2) of the Residential Tenancies Act 1987.

No claim for outstanding rental or electricity costs.
Annual rent fixed by letter dated on or around 26 July 2005 is $600.
FOURTEENTH RESPONDENT: Ian Coughlin and Valerie Coughlin – Albany RSTN 208 of 2006
Address of rented premises: Lot 16 West Section Dillon Bay.
A letter on the Court file dated 1 May 2009 from Mr Coughlin advises that the address of the rented premises is not lot 16 but the correct address is lot 13 of West section Dillon Bay.
Claim by Mr Miller is for:
1.Order for termination of agreement and possession of the premises pursuant to s 72(2) of the Residential Tenancies Act 1987.

No claim for outstanding rental or electricity costs.
Annual rent fixed by letter dated on or around 26 July 2005 is $600.
FIFTEENTH RESPONDENT: John Mortimer – Albany RSTN 209 of 2006
Address of rented premises: Lot 5 East Section Dillon Bay.
Claim by Mr Miller is for:
1.Order for termination of agreement and possession of the premises pursuant to s 72(2) of the Residential Tenancies Act 1987.

No claim for outstanding rental or electricity costs.
Annual rent fixed by letter dated on or around 26 July 2005 is $600.
SIXTEENTH RESPONDENT: William Love – Albany RSTN 210 of 2006
Address of rented premises: Lot 7 East Section Dillon Bay.
Claim by Mr Miller is for:
1.Order for termination of agreement and possession of the premises pursuant to s 72(2) of the Residential Tenancies Act 1987.

No claim for outstanding rental or electricity costs.
Annual rent fixed by letter dated on or around 26 July 2005 is $600.
SEVENTEENTH RESPONDENT: Brian Shugg – Albany RSTN 211 of 2006
Address of rented premises: Lot 16 East Section Dillon Bay.
Claim by Mr Miller is for:
1.Order for termination of agreement and possession of the premises pursuant to s 72(2) of the Residential Tenancies Act 1987.

No claim for outstanding rental or electricity costs.
Annual rent fixed by letter dated on or around 26 July 2005 is $600.
EIGHTEENTH RESPONDENT: Margaret Triplett – Albany RSTN 212 of 2006
Address of rented premises: Lot 15 East Section Dillon Bay.
Claim by Mr Miller is for:
1.Order for termination of agreement and possession of the premises pursuant to s 72(2) of the Residential Tenancies Act 1987.

No claim for outstanding rental or electricity costs.
Annual rent fixed by letter dated on or around 26 July 2005 is $600.
NINETEENTH RESPONDENT: LJ & JA Little – Albany RSTN 213 of 2006
Address of rented premises: Lots 3 and 4 West Section Dillon Bay.
Claim by Mr Miller is for:
1.Order for termination of agreement and possession of the premises pursuant to s 72(2) of the Residential Tenancies Act 1987.

No claim for outstanding rental or electricity costs.
Annual rent fixed by letter dated on or around 26 July 2005 is $600.
TWENTIETH RESPONDENT: George Bennett and Margaret Bennett – Albany RSTN 214 of 2006
Address of rented premises: Lots 3 and 4 West Section Dillon Bay.
Claim by Mr Miller is for:
1.Order for termination of agreement and possession of the premises pursuant to s 72(2) of the Residential Tenancies Act 1987.

No claim for outstanding rental or electricity costs.
Annual rent fixed by letter dated on or around 26 July 2005 is $600.
TWENTY FIRST RESPONDENT: Rose Triplett – Albany RSTN 215 of 2006
Address of rented premises: Lot 11 East Section Dillon Bay.
Claim by Mr Miller is for:
1.Order for termination of agreement and possession of the premises pursuant to s 72(2) of the Residential Tenancies Act 1987.

No claim for outstanding rental or electricity costs.
Annual rent fixed by letter dated on or around 26 July 2005 is $600.
TWENTY SECOND RESPONDENT: Barry Thomas – Albany RSTN 216 of 2006
Address of rented premises: Lot 8 West Section Dillon Bay
Claim by Mr Miller is for:
1.Order for termination of agreement and possession of the premises pursuant to s 72(2) of the Residential Tenancies Act 1987;
2.Order for payment of outstanding electricity consumption charges of $83,15.

No claim for outstanding rental.
Annual rent fixed by letter dated on or around 26 July 2005 is $600.
TWENTY THIRD RESPONDENT: Shane Davis – Albany RSTN 217 of 2006
Address of rented premises: Lot 6 East Section Dillon Bay
Claim by Mr Miller is for:
1.Order for termination of agreement and possession of the premises pursuant to s 72(2) of the Residential Tenancies Act 1987;
2.Order for payment of outstanding electricity consumption charges of $37.58.

No claim for outstanding rental.
Annual rent fixed by letter dated on or around 26 July 2005 is $600.

SCHEDULE 2
EVIDENTIARY MATERIALS

* Indicates matters to which I have not had regard, constituting legal advice or without prejudice correspondence.
Arthur Crabbe – Albany RSTN 201 of 2006
1.Letter undated from Mr Crabbe advising that Lots 1 and 2 have been in his family for over 40 years and "I was always of the understanding that we had a 99 year handshake agreement with Johnny Miller and family" although he would abide by the Court's decision.
2.Copy certificate dated 28 December 1982. The certificate is a standard certificate with blanks for the date, name and lot number, which are completed in hand writing, and is as follows:
"This is to certify that
Doug Crabbe
is guest resident of Section East No 1 & 2
and remains owner and responsible for
all articles fixed and detachable.
Subject to Constitution.
Signed
John F Miller."

3.Diagram of configuration of the Dillon Bay settlement.
4.Map of Dillon Bay showing location of "settlement".

Brian Marris – Albany RSTN 206 of 2006
5.Letter from Marilyn Brennan dated 7 April 2009 advising that her father Brian Marris passed away on 12 February 2008 and attaching a certified copy of death certificate plus a photocopy of his will.

Ian Coughlin and Valerie Coughlin – Albany RSTN 208 of 2006
6.Letter from Mr and Mrs Coughlin to the Magistrates Court dated 14 April 2009 enclosing documents.
7.Copy certificate signed by Mr J F Miller:
"28-9-96
This is to certify that
Ian and Val Coughlin 12/3/94
is guest resident of Section West No 12-13-14
and remains owner and responsible for
all articles fixed and detachable.
Subject to Constitution.
Signed
John F Miller."

8.Invoice/Statement dated 17 April 1996 confirming receipt of both a deposit and the balance of the purchase price from Mr and Mrs Coughlin for the purchase of a house in Dillon Bay from Mr J Coventry. The deposit is $6,500 with a balance owing of $58,500.
9.Letter dated 21 September 1996 from J Coventry to Mr John Miller advising "Ian and Val Coughlin have today paid the balance of purchase on [my] cottage. I hereby give up my lease I previously held on your land."
10.Handwritten receipt dated 21 September 1996 for the sum of $59,100 being the balance of the payment of "my Dillon Bay cottage ($58,500) and $600 for the purchase of a rotary hoe." This is signed by J Coventry.
11.Handwritten receipt dated 17 April 1996 signed by J Coventry acknowledging receipt of the $6,500 deposit.
12.Typewritten note signed by Mrs V Coventry and Mr and Mrs Coughlin dated 7 June 1996, giving permission for Mr and Mrs Coughlin to store their belongings prior to the deposit being paid and until settlement, acknowledging that the balance of monies owing on the Dillon Bay house may take up to another 6 months subject to the sale of their property, and giving permission to Mr and Mrs Coughlin to use the house in the meantime.

13.A handwritten note undated, signed by A Cheesewright stating "I Annie Doreen Cheesewright lived in Dillon Bay from 1983 to 1985".
14.Tenancy Agreement headed "Miller Family Trust: Ompac Pty Ltd – Tenancy Agreement". This is a blank form whereby it is agreed as follows:
"1.The Trust lets and the tenant takes the accommodation known as lot number [ ] together with all fixtures and fittings therein on a perpetual tenancy commencing 1 January 1983 at a rental to be determined from time to time by the Trust and until otherwise determined at a rent of $52 per annum. Rent to be paid in advance at office of business or elsewhere as is satisfactory to the Trust."

The terms set out in this Tenancy Agreement include keeping the premises and fixtures and fittings in good repair, using the premises as the tenant's private residence only, not assigning or under leasing or parting with possession without first obtaining prior written consent of the Trust. There are also rules about what the tenant shall not do, for example not creating a nuisance, playing musical instruments, sound or reproduction machine or radio so as to cause a noise to other tenants.
15.Invoice dated 21 October 1997 from Outdoor Weld for the supply of a colour bond gable roof garage.
16.Shire of Jerramungup Town Planning Scheme No 1 Planning Approval, dated 21 August 1997, which states the owner of the land to be John Miller and the applicant Mr Ian Coughlin, approving garage to be built attached to the existing dwelling and the demolition of the existing old garage.
17.Invoice dated 15 April 1999 from Tanks West relating to the purchase of a water‑tank.
18.Letter dated 3 November 1998 from the Shire of Jerramungup to Mr and Mrs Coughlin advising that council had resolved to establish TV (GWN and ABC) and FM radio re‑broadcast facilities to provide residents with media coverage and that council would levy a one‑off amount to each owner or occupier under the service levy provisions of the Local Government Act 1995 (s 6.38) to recoup that portion of the mast and broadcast equipment. As an occupier of land, being portion Location 95 Dillon Bay "you fall within broadcast areas and become liable for the service levy. Please find enclosed an account for $300 being the amount levied."
19.Copy invoice dated 4 November 1998 from Shire of Jerramungup to Mr I Coughlin in the sum of $300 for "Service Levies – TV Levy; FM Levy".
20.Handwritten note "received from G Miller 28/11/2003" on a Notice which says:
"To whom it may concern,
Houses or shacks for sale.
Houses or shacks may be sold for material value only or removed.
No more lease agreements will be entered into and block lease will not be available for people buying in.
Signed
G Miller."

21.Letter dated 20 November 2003 from Mr Miller addressed "To Whom It May Concern" advising the rent payable as from 1 January 2004 to 30 June 2004 will be $120 and then yearly from 1 July 2004 to 1 July 2005 will be $240.
22.Letter dated 1 December 2004 from Mr and Mrs Coughlin to Mr Miller advising that they had been approached by someone showing an interest in purchasing their house situated at Lot 13 Dillon Bay West and seeking permission to transfer their "Tenant's Lease Agreement" to this interested party.
23.Letter dated 21 December 2006 (to the Magistrates Court) from Mr Coughlin advising that Mr and Mrs Coughlin intend to be present at the mediation in Albany on 15 and 16 January 2007 and making submissions including that:
a.Mr and Mr Coughlin sold their home in Spearwood to purchase their place in Dillon Bay;
b.Mr and Mrs Coughlin did a number of unpaid jobs for the Miller family including using their machinery to maintain driveways into the village, working three days pressing wool for the Miller family in the shearing shed, two days dipping sheep, three days carting hay, one week constructing a new track to Foster's Beach, painting rooms in the Miller residence and divining five bore holes for water, all without monetary reward;
c.After John Miller passed away the entire Miller family had a meeting at Maurice Miller's house, "when we were informed by Maurice Miller that his family considered that my wife and myself were like family to them and they didn't ever want us to sell or leave the Dillon Bay home we had purchased. Any work we carried out was in kind and the intention was not to be paid but what anyone would do for family".

24.Photographs of the Coughlins' house.
25.Letter dated 1 January 2009 from Mr and Mrs Coughlin to Mr G and Mrs B Miller advising that as from 1 January 2009 they are no longer owners of the home situated at Lot 13 Dillon Bay West.
26.Letter from Mr Miller's solicitors, Thompson Legal, dated 21 January 2009 to Mr and Mrs Coughlin responding to the letter dated 1 January 2009 advising that:
a.They (the Coughlins) were never the owner of any property at lot 13 Dillon Bay West, they were only ever a tenant at will.
b.As a tenant they had no legal standing to dispose of the property.
c.They remained at tenant at will by virtue of their continued occupation of the property at the expiration of a fixed term tenancy on 30 June 2006.
d.It was an implied term of the fixed tenancy agreement that they would not sign, sublet or part with possession of the premises without Mr Miller's consent as owner.
e.They had not sought Mr Miller's consent in respect of vacating the property and combining possession of the premises to Charlie Hart.
f.By virtue of the agreement they had committed a breach of their fixed term tenancy agreement.

27.Letter dated 28 January 2009 from Mr and Mrs Coughlin to the solicitors for Mr Miller, in response to the letter dated 21 January 2009, advising that they reserve their rights.
28.Document dated 1 January 2009 signed by Mr and Mrs Coughlin saying that they give as a gift at no cost their house in that building situated at lot 13 Dillon Bay West to Charlie Hart on condition that he accepts all costs, being land, rent and power and all responsibility that goes with the rented land.
29.* Letter of advice dated 21 February 2006 from Minter Ellison to Mr John Triplett on behalf of the residents of Dillon Bay.
30.* Letter to "All" from Paul and Hayley Narducci dated 24 October 2008 regarding Dillon Bay – Kent Location 95.
31.* Letter to "All" from Paul and Hayley Narducci dated 20 November 2007 with attached mailout from Linda (Deacons).
32.* Letter dated 19 November 2007 from Deacons to Margaret Bertling, cc Mrs Hayley Narducci, enclosing a copy of the letter from Thompson Legal.
33.* Letter dated 16 November 2007 from Thompson Legal to Deacons, without prejudice.
34.Copy circular from Shire of Jerramungup, undated, addressed "To all residents of Dillon Bay". This advises that the original settlement, consisting of the subdivision of land, development thereon and subsequent occupancy was undertaken without permission of the then Shire of Gnowangerup. The Shire of Jerramungup later assumed control of the area and identified the Dillon Bay settlement as not conforming with regional Town Planning provisions and that the structures were erected without formal Building and Health approvals. Council subsequently clarified planning issues and building controls and committed that no further extensions to the number of lots be undertaken and that no further development of the lots be permitted. Council's Town Planning Policy No 12 was amended to restrict development of outbuildings and ancillary structures. As stated in the policy, Council's ultimate objective is to revert the development, through natural attrition of the buildings and structures, back to the intent and holdings of Rural use.
35.Page 2 of a letter from the Shire of Jerramungup dated 16 August 2009.
36.Town Planning Policy No 5, undated. This states "It is Council Policy and the ultimate objective for Kent Location 95, Dillon Bay, to eliminate the multiple occupancy of the land and return the site to a rural use, in accordance with the objectives of the 'Rural' zoning".
37.Copy District Map indicating area of the "Village".
38.Letter from the Department of Consumer Protection to Mr Coughlin dated 30 November 2004, responding to a letter dated 4 November 2004 "regarding concerns over your tenancy agreement with the owner, Mr Greg Miller. From our discussions, I understand that you are seeking clarification on whether you can sell your premises and, if not, whether you shall be compensated". The letter advises what the department can provide general advice about, and what it is unable to provide and then states "We understand that a group of residents including yourself, and led by Mr Brian Shugg, have engaged the services of a legal firm for clarification of the issues you have raised with the department. The department does confirm it is seeking an opinion from our legal unit about some of the issues raised with your complaint and may be in further contact once this opinion is received."
39.List of Names and description "Changed Hands or Sold to New Owners".
40.Copy of Supreme Court writ of summons commenced by the respondents against Mr Miller. The endorsement of claim reads as follows:
"The claims of the Plaintiffs and each of them arise by reason of the following:
1.They are the occupiers of their respective residences and the respective areas surrounding the same ('the curtilages') being land necessary or desirable for the convenient occupation of the residences all on lot 95 as contained in certificate of title volume 1188 folio 458 (the land) being land registered since 29 November 2000 in the name of the Defendant in the area of Dillon Bay in the Shire of Jerramungup ('the Shire').
2.The residences have been duly erected pursuant to building permits issued by the Shire.
3.During the period from the mid‑1970s until 2004 the Plaintiffs and/or the persons from whom or through whom the Plaintiffs obtained occupation of their residences have in respect of their residences and the curtilages:
3.1entered into lease agreements alternatively licenses to occupy for 99 years with an option to extend for a further 99 years on the same terms and conditions with the defendant or his predecessor in title being his father Mr John Miller ("John Miller") deceased on 7 October 1999 and have performed or part performed the same an acted at all material times in terms of the same;
3.2entered into occupation, erected and/or maintained their residences and curtilages and expended money and time in respect of the same, all in reliance on representations and promises by the defendant and/or Mr John Miller that the Plaintiffs had the rights and entitlements of a lessee alternatively licensee of the same for a period of 99 years with an option to extend for a further 99 years.

4.In the premises the Plaintiffs are entitled to relief in contract, estoppel and/or by way of other or further equitable relief against the defendant who is seeking to evict them."

In terms of the above the plaintiffs each claim:
"A.A declaration that they are lessees or licensees pursuant to the terms and conditions of their respective leases or licenses;
B.Further or alternatively, a declaration that the Defendant is estopped from denying their entitlements as lessees or licenses;
C.Further or alternatively, a declaration setting out the terms of a constructive trust binding upon the Defendant, to give recognition to the entitlements of the Plaintiffs;
D.An injunction, both interlocutory and permanent, restraining the Defendant whether by himself, his servants, agents or otherwise from taking or pursuing any steps to evict the plaintiffs from their residences and from taking or pursuing any steps to deny them and the invitees' access to their residences, or to cut off or terminate the supply of water or electric power to the same.
E.Further to the relief in 4 an order pursuant to section 39 of the Magistrates Courts (Civil Proceedings) Act 2004 (WA) that the proceedings currently instituted by the Defendant, purportedly pursuant to section 15 of the Residential Tenancies Act 1987 (WA) in Magistrates Court Albany to evict the plaintiffs, be transferred to the Supreme Court in Perth;
F.Damages at law and in equity;
G.Further or alternative relief;
H.Costs."

Brian Shugg – Albany RSTN 211 of 2006
41.Letter dated 5 April 2009 from Mr Shugg outlining his purchase of Lot 16 in 1989. Mr Shugg states that:
"John (Miller) came to see me and we talked about the Village Agreement. He (John Miller) explained that this was a Perpetual Lease and at that time it was $52 per year lease. He also explained that whatever was built on the Lot was able to be sold or passed on to family. The deal was finalised … with a handshake.
The Village People have spent a lot of money on their homes plus underground power and water that cover approximately 40 acres – this power lines and water irrigation includes 2 houses; a shearing shed and a farm shed that the Miller's (sic) own. Water is supplied by 2 bores and 2 concrete tanks that the residents have paid for.
I am asking for Greg Miller, the owner, to honour the agreement his father John Miller and I talked over in 1989. In December 1999 Greg Miller with his brother Morris Miller came to my home and told myself and friend Elaine Hard that whatever agreement we had with his late father would stand and not be changed.
If Greg Miller wants to renege on our agreement and now wants me to leave I believe the least he could do is compensate me adequately for my home and money spent on his farm and for his benefit".

42.Certificate dated 2 September 1990:
"This is to certify that
Brian John Shugg
is guest resident of Section East No 16
and remains owner and responsible for
all articles fixed and detachable.
Subject to Constitution.
Signed
John F Miller."

43.A copy of the unsigned and undated Tenancy Agreement (see document 14 above).
44.Letter dated 6 April 2009 from Mr Shugg to the Magistrate advising that "the Department of Planning has told me that we should not be at Dillon Bay, yet the Jerramungup Shire has approved the development of the village which you will see in the enclosed documents, but also said that it was not a legal subdivision. …Greg Miller is entitled to have his land back but now he wants us to walk away and leave our homes standing for his benefit and without any compensation".
45.Copy letter dated 6 November 1984 from Shire of Jerramungup to Mr J W Triplett advising that the Shire wrote to Mr J F Miller on 26 April 1983 advising that it was prepared to accept and condone the holiday cottage type development on the property, subject to a number of conditions. Amongst those conditions was that tenants/lessees who have developed or are developing their leased areas must act to ensure that their buildings and improvements comply with the requirements of the Uniform Building By-Laws and the Health Act Regulations within 2 years of the date of the letter. The Council is disappointed at the apparent general lack of action to comply with that condition. The Shire's letter advises that all buildings and improvements must conform by 30 April 1985, otherwise Condemnation and Demolition Orders are likely to be served by the Council.
46.Copy letter dated 30 November 1999 from Shire of Jerramungup to Mr J Triplett confirming matters resolved at a meeting on 21 October 1999. Those matters include that, subject to endorsement of the Ministry for Planning, the full provisions of the Building Code of Australia be extended to include Kent Location 95, Dillon Bay, that Council issue minimum rate assessments on each dwelling/occupier at Dillon Bay and issue formal approval under the Town Planning Scheme to the existing improvements at Dillon Bay.
47.Map showing location of "village".
48.Copy letter dated 18 July 1995 from the Minister for Water Resources Western Australia to Mr John F Miller advising that his proposed water supply improvements would be ineligible for a Farm Water Supply Grant, as the proposal does not relate to improving farm water supply, but would cater for the "domestic supply needs of a pensioners' retirement and holiday village consisting of 26 housing units (which may grow to 29)".
49.* Page 4 of a letter dated 18 January 2007 relating to a mediation held on 15 January 2007.
50.Copy deed dated 15 May 2003 between Gregory Michael Miller (Mr Miller) and Shane Davis.
51.Letter dated 23 March 2006 "To Whom It May Concern" from Paul Narducci regarding the purchase of his Dillon Bay community property at Lot 11. He was contacted by John Miller in October 1994 and advised that two properties were up for sale. Paul Narducci arrived at Dillon Bay with his father and met with John Miller who showed them around both properties. The property purchased was one owned by George Allen. "The purchase was carried out in November 1994 and John Miller provided a copy of the 'Miller Family Trust: Ompac Pty Ltd: Tenancy Agreement' document. This lease was to be for a total of 99 years. At the time of the purchase, 34 years had past (sic) which would leave many years to continue the tenancy in the property."
52.Copy plans for "proposed holiday home for G Allen on Block 11 on J Miller's Property Dillon Bay".
53.Copy email dated 2 August 2006 from Garth Van Den Ende to "Margaret" containing details of his father's purchase of a property next door to Margaret Triplett in Dillon Bay. Garth Van Den Ende states he was with his father when he met Mr John Miller and discussed the terms of and conditions of the tenancy. "Each year $52 was payable to the Miller family to renew the lease, the property could be sold again, however, all potential and eventual buyers had to meet Mr Miller and be fully aware of the terms of the contract. It was always my understanding that the 99 year lease had a considerable amount of time to go before expiring and that when it did, it would be renewed, so that all the family's (sic) living in the area could be assured of living there". Mr Van Den Ende sold his property in 1990‑1991.
54.A document "To Whom it may concern" dated 3-14-2006 from P & B Wild which, among other things, states that "with reference to the blocks that where (sic) up for lease at Dillon Bay owner Mr John Miller. The lease was called a 99 year perpetual lease at $1 per week for 99 year's (sic) this was the agreement Mr John Miller stipulated….At my first meeting with Mr John Miller at which three other families attended, when we where (sic) shown around to see the blocks that where available and told what sort of dwelling could be erected and I was told that some form of a plan should be drawn this we all agreed to the perpetual lease at $52.00 dollars per year…".
55.A copy of an email dated 30 July 2005 from Peter to Margaret and Jack Triplett which criticizes Mr Miller's actions and says, among other things "we are all aware that all the residents who purchased a property (home) in Dillon Bay village were under the impression that the late John Miller had told them that the lease was perpetual and that they could stay as long as they wished."

Margaret Triplett – Albany RSTN 212 of 2006
56.Submission dated 25 May 2009 from Margaret Bertling on behalf of John Walter Triplett (dec) and Winifred Margaret Triplett, attaching paperwork.
57.Copy handwritten statement of J Triplett dated 19 January 2005. This describes how a group of 4 families heard of "rental blocks" at Dillon Bay, viewed them, chose blocks and paid an annual fee of $52 per year and "after many questions were told it was perpetual and safe to build here". Arrangements were put in place for plans to be submitted to Shire for approval and for fencing to take place. On John Miller's sudden death (he is described as "Pop" in this statement), "the annual rents rose 100% … I spoke to Greg (Miller) what happens to us now Pop has gone and he assured me nothing changes it stays the same at Pops". It goes on to discuss changes to Mr Miller's position and that "a new set of rules were delivered to us that no more selling of houses (illegible) can be sold as salvage purposes only." Also block rents went to $240 yearly. "Everything I had was put into this house so I have now no bank account to build our dream home. The Village owns the concrete water tanks and all water lines, 2 bores and pumps we also paid for all underground power … plus the roads and all blocks fenced … I will go providing I am adequately compensated for 25 years of hard work in building my house and the completion of the village …".

58.Further copy handwritten statement of J Triplett dated 19 January 2005, rewritten version of document 57 above.
59.Copy handwritten note dated 2 February 2005 "To Whom it May Concern" signed by JW and WM Triplett. This expresses disagreement with what appears to have been a proposal following a meeting with Greg Miller, Maurice Miller, Ellen Bartlett and three dwelling owners "including myself". This note says "I am 100% behind all dwelling owners in the 'Dillon Bay Village' to retain and restore John Miller's original agreement, and after his sudden death in 1999, Greg Miller assured us nothing would change and that we carry on with our perpetual lease, be able to sell if necessary ….".
60.Copy handwritten letter dated 30 May 2005 signed by John W Triplett. The address at the top of the letter is "Dillon Bay Residents Action Group, J Triplett, c/- Bremer Bay P/O 6388". The addressee is "Att: Dianne Buckley". In this letter is stated "With over 2 decades of helping on the Millers farm the late Mr J Miller assured all of us we had a perpetual lease and after 6 years he asked us to move here permanently which we did. Myself and over 90% of the owners helped the Miller family on and around the farm … . In Oct 99 Mr J Miller passed away and Greg was asked what was going to happen to the village and we were assured in no uncertain manner nothing changes as it will carry on the way his father wanted it to for the dwelling owners…" This goes on to discuss the work done in fencing, putting in roads, and the fact that the Shire condoned and approved building permits and residents contributed to the costs of a TV tower and FM radio mast. It also discusses Mr Triplett's health and financial circumstances.
61.Another copy handwritten note "To Whom it May Concern", undated and illegible.
62.Copy District Map 27.
63.Copy extract from Shire of Jerramungup Minutes regarding a report to Council, dated 29 March 2005, for Agenda: Reference 11.4.2, Subject: Deduction of Dillon Bay Road, Applicant: Department of Planning and Infrastructure. This relates to a proposal to extend the public road access to Lot 95, owned by Mr John Miller, down to Dillon Bay beach.
64.Copy letter dated May 2005 from the Dillon Bay Action Group c/- Ian Coughlin to the Jerramungup Shire Council. The letter seeks an opinion from the Shire in relation to one of "our options for settling the future of our properties situated in Dillon Bay" which is to purchase from Mr Miller "the 100 acres or the 10 acres property which already has separate title and to form a syndicated ownership for the existing residents, thus giving them secure tenure over their allotments".
65.Copy letter dated 27 July 2005 from Mr Miller to Mr and Mrs Jack Triplett. This reads:
"Dear Jack & Margaret
YOUR TENANCY OF DILLON BAY
I refer to our previous discussions regarding your tenancy.
As you would be aware, I have sought legal advice to determine the character of your tenancy. The legal advice I have received is that your tenancy can be terminated by one months notice in writing.
As you would also be aware, it has always been my intention to return the property to farming.
So as to provide you with adequate time to make alternative tenancy arrangements, and as a gesture of good will, I have decided to grant you a further teneancy (sic) of 12 months commencing 1^st July 2005 and expiring 30^th June 2006.
The rental for this twelve month tenancy will be $600.00 and I have reserve (sic) the right to conduct a further rent review on the 31^st December 2005 once the rate notices for the property have issued.
At the expiration of the twelve month term [ie. on 30^th June 2006] I will require vacant possession of the property. Would you please ensure that all structures are dismantled and removed prior to that date.
I have enclosed a tax invoice for the 2005/2006 rent which credits any payment of rent received from you. Would you please pay the balance owing on the invoice within 7 days.
Yours faithfully
Greg Miller".

66.Copy medical report "To Whom It May Concern" dated 9 May 2005 from Dr John Cooper regarding Mr John Triplett.
67.Copy extract from Shire of Jerramungup Minutes regarding a report to Council dated 12 September 2005, for Agenda: Reference 11.3.3, Subject: Dillon Bay Cottages, Applicant: Mr I Coughlin. This relates to the letter from Mr I Coughlin (document number 64) which the report states as seeking Council's consideration to re-examine its policy on the multiple occupancy at Dillon Bay and purchase the land from Mr Miller and resell the blocks to the occupiers at Dillon Bay. It refers to advice received that the existing use of the land is non‑conforming. The recommendations made and carried as a resolution of Council are that:
"1.Advise Mr I Coughlin that Council would not be receptive to the submission of a Scheme amendment to allow for the subdivision of Kent Location into individual titles;
2.Decline Mr I Coughlin's request that Council purchase Kent Location from 95 from Mr Miller and;
3.Advise Mr I Coughlin that there is no reason for Council to be a party to any proposed land purchase involving Kent Location 95, as it is purely a commercial transaction that must be between the cottage owners and Mr Miller."

68.Copy medical report "To Whom It May Concern" dated 10 January 2006 from Dr David Tadj regarding Mr John Triplett.
69.Copy medical report "To Whom It May Concern" dated 14 February 2006 from Dr John Cooper regarding Mr John Triplett.
70.Copy medical report "To Whom It May Concern" dated 1 March 2006 from Dr David Tadj regarding Mr John Triplett.
71.Copy letter dated 23 March 2006 from Thompson Legal, solicitors for Mr Miller, to Mr John Triplett, following the forwarding to Thompson Legal the medical reports from Dr Cooper and Dr Tadj dated 14 February 2006 and 1 March 2006 respectively.
72.Two records dated 9 November 1982 and 25 March 1994 relating to Mr and Mrs Triplett's payment for a power pole and meter and underground power.
73.Certificate dated 29 December 1982:
"This is to certify that
Jack Triplett
is guest resident of Section East No 15
and remains owner and responsible for
all articles fixed and detachable.
Subject to Constitution.
Signed
John F Miller."

74.Copy letter dated 6 November 1984 from Shire of Jerramungup to Mr J Triplett (see document number 45 above).
75.Copy letter dated 18 March 1985 from Shire of Jerramungup to Mr J W Triplett stating that "please be advised that the Council has today advised Mr J F Miller as the owner of the land (i.e. Kent Location 95) that in all cases where there is failure to comply with the requirement of the Council, that all buildings and improvements in the leased area at Dillon Bay are to comply with the provisions of the Uniform Building By-laws and the Health Regulations by 30 April 1985, it is the intention of Council after that date to act to serve 'Unfit for Habitation' and 'Condemnation/Demolition' Orders under the provisions of the Health Act and Regulations."
76.Copy letter "To Whom It May Concern" from John Miller stating that "This is to certify that John W Triplett is Lessee/Tenant of section east number 15 Dillon Bay and remains owner of all structures, housing etc, subject to constitution."
77.Copy receipt dated 27 April 1986 from John Miller for payment for water tank.
78.Copy Prestige Water Tank Guarantee for water tank installed 10 March 1997.
79.Copy tax invoice dated 28 November 2003 from Chesterpass Irrigation, with signed receipt, for submersible pump and other equipment. The invoice is addressed to "Quote Trade Dillon Bay Maintenance Fund".
80.Copy tax invoice dated 20 June 2003 from Collie Drilling to Dillon Bay Village for cost of bore hole.
81.Copy tax invoice dated 30 January 2002 from Southern Electrics to Dillon Bay Residence for cost of Davey 10218 Impeller.
82.Copy letter dated 1 October 1986 from Shire of Jerramungup to Mr J Triplett advising that its health/building surveyor will be undertaking inspections of each of the Dillon Bay buildings to ensure compliance with standard health and building requirements.
83Copy Shire of Jerramungup Building Licence dated 4 October 1990 granted for Mr and Mrs JW and WM Triplett, Lot 15 Dillon Bay Road, with attached plans.
84.Copy Health Department of WA Recommendations for septic tank system dated 18 September 1991.
85.Copy Health Department of WA approval dated 29 July 1991 for septic tank plans for J & M Triplett, Lot 15, Dillon Bay road, Dillon Bay.
86.Copy Shire of Jerramungup Building Licence dated 19 September 1991 granted for J & M Triplett, with attached plans.
87.Copy handwritten document dated 29 March 1995 which is headed "John Miller family trust OMPAC Pty Ltd, Dillon Bay Station via Albany" and states:
"Ownership of House and garage on John Millers farm Lot No 17.
I, John Miller owner and founder of the Miller farm family trust verify that the House on my farm on lot no 17 is paid for and belongs to MG BJ Pimlott and the House or shed doesn't have anything to do with me or the farm. The house belongs to them and I lease the land it sits on to them for $52 a year…
Last owner of the House was Steve Mullins who was paid cash as full payment on the House and the garage…"

88.Copy hand written note dated 10 November 1996 signed by Mr John Miller and ED Bartlett stating that "We the undersigned do hereby agree and certify this house and garage PRIVATE may now be transferred to B J Pimlott." There is an attached diagram showing Lot 17.
89.Copy receipt dated 1 May 1995 from Mr John Miller to Jack and Margaret Triplett for water tank. Below that receipt is a typed note from JF Miller stating "Please Note. To comply with health regulations it has become necessary to purchase and install a 20,000 gallon squatters tank to service your block at Dillon Bay. A loan with interest chargable (sic) has been arranged. Repayment at an early date is recommended. Your share will be calculated on connection of tank".
90.Copy letter dated 6 May 1996 from Shire of Jerramungup to State Ombudsmen, addressing a request for comments regarding the Shire's apparent failure to maintain Dillon Bay Road to a satisfactory standard.
91.Copy extract from Shire of Jerramungup Town Planning Scheme No 1.
92.Copy extract from Shire of Jerramungup Town Planning Scheme No 2.
93.Copy handwritten note dated 12 May 1997 titled "Dillon Bay Dwelling Owners and Occupiers" addressing Shire zoning.
94.Copy extract from Shire of Jerramungup Town Planning Scheme – Number unknown.
95.Copy extract from Shire of Jerramungup Minutes dated 15 July 1997 Item 10, Subject: Dillon Bay Petition and Request for Formal Acknowledgment Under Town Planning Scheme No 1 and Relaxation of Town Planning Policy No 12, Proponent: Residents of Dillon Bay.
96.Copy extract from Shire of Jerramungup Minutes dated 20 May 1997 Item 08, Subject: Devolution of Septic Tank Approvals.
97.Copy letter dated 27 August 1997 from Shire of Jerramungup to Mr John Miller regarding petition and request for formal acknowledgement under Town Planning Scheme No 1 and relaxation of Town Planning Policy No 12 in relation to Kent Location 95, Dillon Bay, enclosing copy of agenda item from Council meeting held 17 June 1997, referring to Council's intention to seek legal advice and requesting contribution of 50 per cent of Council's costs to obtain that advice from the Dillon Bay residents.
98.Copy letter dated 13 October 1997 from Shire of Jerramungup to Mr John Miller regarding request to contribute to determination of legal status of Dillon Bay development Ken Location 95. As Council has received no response to this letter of 27 August 1997, the matter is to be reported at Council's meeting of 21 October 1997.
99.Copy letter dated 19 February 1998 from Shire of Jerramungup (Graeme Bisset, environmental health officer/building surveyor) to Mr John Miller regarding request for contribution to ascertain "existing user rights" status, Lot 95 Dillon Bay. This repeats the Shire's request for contribution of half the cost of a legal opinion to settle the matter of existing user rights for the tenants "on your property". This letter is cc'd to Mr J Triplett.
100.Copy letter dated 2 March 1998 from Mr J Triplett to Mr Graeme Bissett responding to the letter dated 19 February 1998. This advises that residents agree to obtain legal advice but have a number of questions of Council, which are set out in that letter.
101.Copy letter dated 3 May 1998 from Shire of Jerramungup (Graeme Bisset, environmental health officer/building surveyor) to Mr J Miller responding to questions in Mr J Triplett's letter of 2 March 1998.
102.Copy letter dated 7 July 1998 from Mr J Triplett to Mr Graeme Bissett responding to the letter dated 3 May 1998 and advising that the dwelling owners are in favour of sharing costs with the Shire for legal opinion.
103.Copy letter dated 3 May 1998 from Shire of Jerramungup Mr J W Triplett acknowledging his letter of 7 July 1998 and advising that a copy of the material to be sent to Council's legal representatives will be forwarded when it is compiled.
104.Copy letter dated 3 November 1998 from Shire of Jerramungup to Mr J Triplett re TV and FM Radio (see document number 18 above).
105.Copy invoice dated 4 November 1998 from Shire of Jerramungup to Mr J Triplett in the sum of $300 for "Service Levies – TV Levy; FM Levy".
106.Copy letter dated 22 December 1998 from Shire of Jerramungup to J & M Triplett responding to letter of 8 December 1998 requesting time to pay the account for TV and FM Levy.
107.Copy receipt, undated, from Shire of Jerramungup to J Triplett.
108.Copy letter dated 8 December 1998 from J W Triplett to Shire of Jerramungup requesting time to pay the Shire's account for the account for TV and FM Levy.
109.Copy further receipt dated 19 March 1999, from Shire of Jerramungup to J Triplett for TV Levy.
110.Copy Notice, undated:
"To the Dwelling Owners/Occupiers
Just a friendly notice from Greg Miller to inform you that regrettably I am forced to increase the rent, due to the high rising costs of the public liability insurance covers of the village. As my time is valuable to keep the farm operating and I do not have the time affordable, as my late father had to visit everyone as they come down but I will make every endeavour to do so as my Dad did, and have a yarn and a coffee or beer with you.
Trusting you will understand the circumstances that we are faced with.
And can continue the great liaison my late father has implemented in his Dillon Bay Village."

111.Copy letter dated 30 November 1999 from Shire of Jerramungup to Mr Jack Triplett advising on resolutions of Council (see document number 46 above).
112.Copy certificate of Title for Kent Location 95, CT Volume 1188 Folio 458.
113.Letter dated 20 April 2009 from Margaret Bertling to the Albany Magistrates Court, with submissions on behalf of John Walter Triplett (dec) and Winifred Margaret Triplett.

Shane Davis – Albany RSTN 217 of 2006
114.Letter from Mr Davis, undated, explaining his purchase of the residence on Lot 6 East Section on 15 May 2003. He had an agreement with the late John Miller to purchase Banksia Cottage, as it was known, as a hire purchase, with rent being deducted as house and or rent payments. After his death Mr Miller "assured us he would honour his father's agreement". On 20 November 2003 Mr Miller informed the residents of Dillon Bay that their houses could not longer be on-sold or released and could only be sold as tin and timber. Mr Davis says he would not have paid the final amount of $3000 (to Mr Miller) if Mr Miller's intentions had been known. The letter goes on to make allegations concerning events after 1 July 2006 and complaints concerning the condition of the house as purchased.
115.Handwritten document entitled "First Years Rent to be Allowed As Depost" (sic).
116.Photographs x 4 of Mr Davis' house.
117.Handwritten receipt for rent, signed by Mr Miller, dated 17 August 2000.

Received from Mr Crabbe in this appeal:
118.Submissions by letter dated 7 June 2010.
119.Aerial photograph of Kent Location 95 and the "village".

Received from Mr Miller in this appeal:
120.Submissions by letter dated 7 June 2010.
121.Aerial photograph of Kent Location 95 and the "village".
122.Diagram of the lots at Dillon Bay Settlement.
123.Copy of the unsigned Tenancy Agreement (see document number 14 above)
124.Photographs of some of the residences and the entrance to the "village".
125.Copy deed dated 15 May 2003 between Gregory Michael Miller and Shane Davis.
126.Statement of Claim in Supreme Court Proceedings CIV 1867 of 2006 (commenced by the respondents against Mr Miller).
127.Defence in Supreme Court Proceedings CIV 1867 of 2006.