MYOPE PTY LTD T/A ROCKINGHAM HOLIDAY VILLAGE and WOODS-ARMES
[2022] WASAT 50
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: RESIDENTIAL PARKS (LONG-STAY TENANTS) ACT 2006 (WA)
CITATION: MYOPE PTY LTD T/A ROCKINGHAM HOLIDAY VILLAGE and WOODS-ARMES [2022] WASAT 50
MEMBER: MS A KING, MEMBER
HEARD: 31 MAY 2022
DELIVERED : 3 JUNE 2022
FILE NO/S: CC 498 of 2022
BETWEEN: MYOPE PTY LTD T/A ROCKINGHAM HOLIDAY VILLAGE
Applicant
AND
ALEXANDRIA WOODS-ARMES
Respondent
Catchwords:
Periodic site only - Long-stay agreement - Rent - Utility charges - Rent record - Rule 8 of the Residential Parks (Long-stay Tenants) Regulations 2007 (WA) - Default notice - Termination notice - Day specified for payment of rent outstanding - Compliance with s 39(4)(a) and s 39(4)(b) of Residential Parks (Long-stay Tenants) Act 2006 (WA) - Compliance with s 66(5) of Residential Parks (Long-stay Tenants) Act 2006 (WA)
Legislation:
Residential Parks (Long-stay Tenants) Act 2006 (WA), s 3, s 5(1), s 6(3), s 10, s 12(1)(e)(i), s 28(1A), s 37, s 38, s 39, s 39(1)(b), s 39(2)(a), s 39(3)(a), s 55, s 66, s 66(1), s 66(2), s 66(5), s 91
Residential Parks (Long-stay Tenants) Amendment Regulations 2021 (WA), reg 8
Residential Parks (Long-stay Tenants) Regulations 2007 (WA), reg 12(1)(b), Sch 3, Div 2, Div 3, cl 6
Result:
Order by consent of the parties
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
| Respondent | : | Non Appearance |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
Burnham v Carroll Musgrove Theatres Ltd (1928) 41 CLR 540
Queen's Club Garden Estates Ltd v Bignell [1924] 1 KB 117
'Rockingham Holiday Village and Cracknell [2015] WASAT 32
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
The applicant is Myope Pty Ltd t/a Rockingham Holiday Village represented by Donna Harrington (park operator) who lodged an application in the Tribunal on 27 April 2022 for an order against the respondent, Alexandria Woods-Armes (tenant) seeking vacant possession due to unpaid rent pursuant to s 66(2) of the Residential Parks (Long-stay Tenants) Act 2006 (WA) (RP Act).
The application was listed for a direction hearing on 13 May 2022 at which time the park operator was advised by the Tribunal member to provide to the Tribunal a copy of the long-stay agreement between the park operator and the tenant pursuant to the RP Act, evidence of service of relevant notices and an up-to-date rent record. The application was listed for a final hearing on 31 May 2022.
Issues to be decided
1)Is there a long-stay agreement pursuant to the RP Act between the park operator and the tenant and if so, what are the terms of that long-stay agreement?
2)Is the default notice issued by the park operator to the tenant one that was given in accordance with the RP Act?
3)Is the termination notice issued by the park operator to the tenant one that was given in accordance with the RP Act?
4)Should the Tribunal make orders pursuant to s 66(2) of the RP Act for termination of the long-stay agreement and make an order for vacant possession of the site?
The hearing
At the hearing the Tribunal had before it the following documents:
a)the application;
b)a default notice of termination for non-payment of rent dated 30 March 2022; and
c)a notice of termination by the park operator for nonpayment of rent (default notice issued) dated 14 April 2022, requiring vacant possession by 22 April 2022.
In addition, the park operator had lodged with the Tribunal a statement of charges made by the park operator and payments made by the tenant in relation to powered site 034 (site 034) from 19 February 2022 until 26 April 2022.
The tenant did not attend the hearing or file any documents in the proceedings.
The long-stay agreement
a)The park operator had leased to the tenant a powered site only, being number 034 at the Rockingham Holiday Village (Park), on a long-term basis, that is, for longer than three months commencing on Friday 27 August 2021.
b)The lease agreement was for an indefinite period and was a periodic tenancy.
c)The period of the periodic tenancy was one week with rent due every Friday.
d)The rent for site 034 was agreed at $252 per week plus electricity charges in accordance with use by the tenant.
e)Site 034 is separately metered, and the metre is read every Thursday.
f)The tenant agreed to the rent and the electricity charges.
g)The tenant has stopped paying the rent and the electricity charges and has not vacated site 034.
h)The park operator relies on the notices and the rent record and is seeking vacant possession of site 034 as soon as possible.
Default notice
The default notice is dated 30 March 2022 and is in the scheduled form. It asserts that rent was due on 15 March 2022 and as at the date of the default notice the rent amount of $656.09 was due. It also states that rent was owed for multiple periods and refers to an attachment, however no document was attached. It states that rent must be paid by 14 April 2022.
The park operator stated that she handed the default notice to the tenant personally on 30 March 2022. A period of at least 14 days to pay the rent after the day on which the default notice was given was provided for. The tenant was given until 14 April 2022 to pay.
Notice of termination
The notice of termination is dated 14 April 2022 and is in the scheduled form. It states that the rent was due on 15 March 2022 and that the amount of rent due is $1,312.38. It refers to the default notice dated 30 March 2022 and requires vacant possession by 22 April 2022.
The park operator stated she handed the notice of termination to the tenant personally on 14 April 2022. A period of at least seven days to pay the rent after the day on which the notice of termination was given was provided for.
The rent record lodged with the Tribunal is an incomplete rent record and does not accord with s 28(1A) of the RP Act. It commences on 19 February 2022 and ends on 26 April 2022. At the time of the hearing the park operator provided two further rent records.
The application to the Tribunal was made within 30 days of the date of termination.
Service of notices
The park operator stated there were no witnesses to her handing either of the notices to the tenant but that she made a written entry of the date she had served the notices. Copies of the entries were not provided to the Tribunal.
The park operator was under oath at the time of the hearing and gave her evidence in a clear and straightforward manner. The Tribunal is satisfied that the default notice was given to the tenant on 30 March 2022 and the notice of termination was given to the tenant on 14 April 2022.
The issue in this matter is whether the default notice and the notice of termination were compliant with the requirements for such notices as prescribed by the RP Act and whether the Tribunal should make an order pursuant to s 66(2) of the RP Act.
Jurisdiction
Section 66(2) of the RP Act confers on the Tribunal jurisdiction to make:
(a)an order terminating the long-stay agreement; and
(b)an order requiring the long-stay tenant to give vacant possession of the premises to the park operator.
This is the provision pursuant to which the park operator has made her application.
Section 66(1) of the RP Act provides:
This section applies where -
(a)a park operator has given a notice of termination to a long-stay tenant under section 39(1)(a) or (b) on the grounds that the tenant has not paid rent in accordance with the long-stay agreement; and
(b)the tenant does not give vacant possession of the agreed premises to the park operator on the day specified in the notice of termination.
In this proceeding the applicant is the park operator as that term is defined in s 3 of the RP Act.
The Tribunal was satisfied that the tenant of site 034 at the Park had been a tenant for more than three months prior to when the dispute first arose. The rent record confirms that the tenant had been a resident at the Park for more than three months and the Tribunal is satisfied that the park operator granted the tenant a right of occupancy over site 034 at the Park which allowed the tenant to park a caravan.
It was on the basis that the tenant was to make weekly payments of $252 plus electricity charges from 27 August 2021.
Although not in the form prescribed by s 10 of the RP Act which states that a long-stay agreement must be in writing and include the terms of a site only agreement under s 55, or in writing at all, the longstay agreement between the parties meets the definition of a longstay agreement as defined in s 5(1) of the RP Act.
Further, s 6(3) of the RP Act states that
This Act applies to, and in respect of, an existing long-stay agreement made orally -
(a)to the extent that it can be applied, as if the agreement had been made in accordance with this Act;
(b)until the agreement is terminated or replaced.
The Tribunal finds that the parties are parties to a long-stay agreement within the meaning of the RP Act and the park operator is the park operator within the meaning of that term as provided for in the RP Act and the tenant is the long-stay tenant or tenant within the meaning of that term as provided for in the RP Act, for the purposes of s 66 of the RP Act.
As s 66 of the RP Act confers jurisdiction on the Tribunal to make orders for vacant possession of premises that are the subject of a longstay agreement, this application falls within the Tribunal's original jurisdiction.
The law
The term 'periodic tenancy' is not defined in the RP Act, but is known at common law as a tenancy agreed between the parties from period to period and can only be terminated at the end of any period by the issue of a notice to quit: Queen's Club Garden Estates Ltd v Bignell [1924] 1 KB 117 at 124 and 134; Burnham v Carroll Musgrove Theatres Ltd (1928) 41 CLR 540 at 555.
For the park operator to succeed in obtaining an order from the Tribunal pursuant to s 66(2) of the RP Act, the Tribunal must be satisfied of the matters identified in s 66(5) of the RP Act, which provides:
If, under section 39(1)(b), the park operator gave to the longstay tenant both a default notice and a notice of termination, the State Administrative Tribunal may make the orders if -
(a)the notices were given in accordance with this Act; and
(b)the day on which the orders are made is at least 21 days after the day on which the default notice was given to the tenant.
To succeed in obtaining an order for termination of the long-stay agreement between the parties and an order for vacant possession of site 034 in question, pursuant to s 66(2) of the RP Act, both the default notice and the notice of termination must have been given in accordance with the RP Act.
The Tribunal finds that the words 'gave' and 'given' in s 66(5) of the RP Act are not limited to the act of physical service of the document referred to above and referred to in s 91 of the RP Act. The words 'gave' and 'given in accordance with the RP Act in s 66(5) however, must refer to the information in the default notice and the notice of termination as prescribed by s 39 of the RP Act and the form of each notice as prescribed by the RP Act (s 37 and s 38 of the RP Act) and the information must be accurate.
Section 39(2)(a) of the RP Act requires that the notice of termination must specify the amount of rent outstanding.
Similarly, the Residential Parks (Long-stay Tenants) Regulations 2007 (WA) (Regulations) direct at reg 12(1)(b) that:
A default notice for non-payment of rent -
…
(b)for the purposes of section 37(c) of the Act must contain the information set out in Schedule 9 Division 1.
In accordance with s 3 of the RP Act, rent, in relation to a longstay agreement means an amount paid or payable under the longstay agreement by the long-stay tenant in respect of the tenancy period or a part of the tenancy period.
The Regulations
In accordance with the Regulations prior to their amendment in 2021, Sch 3, Div 2: Rent, Fees and Charges cl 6 (2) - Note: Div 3, specifies what fees or charges for services and utilities are included in the rent, if any.
The Tribunal in the matter of Rockingham Holiday Village and Cracknell [2015] WASAT 32 found that the respondent had agreed to pay the applicant a weekly amount of $300 per week and a weekly amount for utility charges.
It held that 'rent' includes the utility cost charges and that the amount specified in the default notice as rent outstanding must reflect that sum which is legally payable pursuant to the long-stay agreement as at the date of the default notice. Any failure to reflect the correct amount is, in the Tribunal's view, a failure to comply with the directive described above and in s 39(3)(a) of the RP Act.
The Residential Parks (Long-stay Tenants Amendment Regulations 2021) (WA) amended the Regulations and inserted reg 8: Types of fees that may be charged (Act s 12(1)(e)(i)):
…
(c)if the tenant has a separate electricity meter - fees for electricity consumed by the tenant;
…
(l)fees to cover the cost of a replacement key, remote control entry device or other security device[.]
In accordance with s 28 of the RP Act:
Rent records kept by park operator
(1A)The record must state the following each time the rent is received -
(a)that the payment received is for rent;
(b)the date the rent was received;
(c)the name of the person paying the rent;
(d)the amount paid;
(e)the period in respect of which the rent is paid;
(f)the site in respect of which the rent is paid.
It follows that payments for other charges in accordance with reg 8 such as fees to cover the cost of keys and electricity charges must also be identified and recorded.
The evidence of the park operator
The park operator at the time of the hearing submitted a further incomplete rent record adding that in addition to that record the tenant had made a cash payment at the beginning of the tenancy. She then emailed another document to the Tribunal which she described as the complete record. She submitted that the payments made by the tenant include amounts for electricity.
The park operator told the Tribunal that the tenant's mother and father had each been paying the rent for a considerable time, but no further payments have now been received which prompted the application. She had spoken to the father of the tenant only the day before the hearing. He had come into the office to find out what was going on as he had not had communications with his daughter. He said, 'don't get rid of my van' and intimated he would not be making any further payments for rent.
The park operator herself had not seen the tenant recently but the night manager had reported seeing her. Her caravan is still parked on the site. The park operator had previously told the tenant that 'Michael' (the other park operator) will ask you to leave if the rent is not paid.
The evidence of the tenant
The Tribunal attempted to telephone the tenant twice at the beginning of the hearing but was unable to contact the tenant. The Tribunal was able to make contact per telephone with the tenant at about 2 pm on the day of the hearing. The tenant agreed that there was an amount outstanding for rent and told the Tribunal that she intended to move from site 034. She requested seven days to do so, stating she needed time to obtain a part to fix a door before the caravan could be moved.
This was agreed to by the park operator. The tenant then terminated the call.
Tribunal's consideration
The third or last rent record lodged with the Tribunal commenced on 27 August 2021.
It shows a separate charge and subsequent payment by the tenant for keys in the sum of $30 and two payments of lesser amounts that are consistent with electricity charges. This was not in dispute by the park operator. All other payments made in various larger amounts made by the tenant are entered on the rent record as 'direct credit receipts'.
In the present case both the default notice and the termination notice requested a payment of a sum as being outstanding which is not agreed between the parties. The tenant was given until all of 14 April 2022 to pay the rent, however the notice of termination was issued and served on the same day.
The Tribunal is satisfied that a periodic long-stay agreement was entered into by the parties for more than three months and that the period of the periodic tenancy is one week with rent due each Friday from 27 August 2021. The Tribunal also finds that the weekly rent for site 034 is $252 per week plus electricity use in accordance with meter readings which are conducted on Thursdays of each week.
The Tribunal finds that the rent record does not accord with s 28(1A). It does not state for each payment made what the payment was made for and the period in respect of which the rent is paid. The Tribunal was not provided with any evidence in relation to the metre readings or the calculations for electricity.
The Tribunal undertook its own calculations in relation to rent adopting the most favourable position for the tenant namely that all payments made by the tenant not identified as a payment for keys or electricity, be attributed to rent. The result of those calculations is that as at the date of the default notice the rent was due to be paid on 1 April 2022 with the amount of $252 being due. The park operator did not disagree with those calculations.
Accordingly, the Tribunal cannot be satisfied that the default notice and the notice of termination comply with the RP Act.
A non-compliant default notice does not meet the requirement of being one that is given 'under s 39(1)(b)' and 'given in accordance with the RP Act'. Similarly, the Tribunal cannot be satisfied that the termination notice is compliant with the RP Act.
In the end, the Tribunal is not required to decide the issue regarding the default notice or the notice of termination as the parties agreed to resolve the dispute and agreed to consent orders being made.
The Tribunal considered the agreement reasonable and agreed to make an order in the terms agreed between the parties.
Orders
The Tribunal orders:
By consent of the parties:
1.The respondent must give vacant possession of site 034 situated at the Rockingham Holiday Village on 7 June 2022.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS A King, MEMBER
7 JUNE 2022
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