ROCKINGHAM HOLIDAY VILLAGE and CRACKNELL

[2015] WASAT 32

ROCKINGHAM HOLIDAY VILLAGE and CRACKNELL [2015] WASAT 32

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2015] WASAT 32
Act:	RESIDENTIAL PARKS (LONG-STAY TENANTS) ACT 2006 (WA)
Case No:	CC:28/2015	Heard:	26 FEBRUARY 2015
Coram:	MS N OWEN-CONWAY (MEMBER)	Delivered:	24/03/15
No of pages:	12	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
PDF Version

Parties:	ROCKINGHAM HOLIDAY VILLAGE BRETT CRACKNELL
Catchwords:	Default notice ­ Amount of rent outstanding ­ Day specified for payment of rent outstanding ­ Compliance with s 39(4)(a) of the Residential Parks (Long­stay Tenants) Act 2006 (WA) ­ Termination notice ­ Incorrect amount of rent outstanding in default notice and notice of termination ­ Default notice and notice of termination not given in accordance with Residential Parks (Long­stay Tenants) Act 2006 (WA) ­ Compliance with s 66(5) of the Residential Parks (Long­stay Tenants) Act 2006 (WA)
Legislation:	Interpretation Act 1984 (WA), s 61(1)(b), s 76, s 76(c) Residential Parks (Long­stay) Tenants Act 2006 (WA), s 3, s 5(1), s 7(3), s 37, s 38, s 39, s 62(4)(k), s 66, s 91 State Administrative Tribunal Act 2004 (WA), s 15
Case References:	Nil
Orders	On the application heard on 26 February 2015 before Member Natasha Owen-Conway, it is on 24 March 2015 ordered that:,1. The applicant's application for an order requiring the respondent to give vacant possession of the premises to the park operator pursuant to s 66(2) of the Residential Parks (Long-stay Tenants) Act 2006 (WA) is refused.,2. The application is dismissed pursuant to s 62(4)(k) of the Residential Parks (Long-stay Tenants) Act 2006 (WA).
Summary	The Tribunal found, on the conceded facts, that the applicant's default notice and notice of termination each failed to specify the correct amount of rent outstanding as the date of the respective notices, as required by s 39(2)(a) and s 39(3)(b) of the Residential Parks (Long­stay Tenants) Act 2006 (WA). Therefore, neither the default notice nor the notice of termination complied with s 39 of the Residential Parks (Long­stay Tenants) Act 2006. These failures resulted in the Tribunal concluding that the notices (which were relied upon to substantiate the applicant's claim for an order for vacant possession against the respondent) were, in each case, not given in accordance with the Residential Parks (Long­stay Tenants) Act 2006 as required by s 66(5)(a) of the Residential Parks (Long­stay Tenants) Act 2006. Further, the default notice did not comply with s 39(4)(a) of the Residential Parks (Long­stay Tenants) Act 2006 because the day specified in the default notice for payment of the specified outstanding rent was not at least 14 days 'after' the day that the default notice was given to the respondent, which was no earlier than 7 December 2014, being the date of that notice. The application was dismissed pursuant to s 62(4)(k) of the Residential Parks (Long­stay Tenants) Act 2006.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : RESIDENTIAL PARKS (LONG-STAY TENANTS) ACT 2006 (WA) CITATION : ROCKINGHAM HOLIDAY VILLAGE and CRACKNELL [2015] WASAT 32 MEMBER : MS N OWEN-CONWAY (MEMBER) HEARD : 26 FEBRUARY 2015 DELIVERED : 24 MARCH 2015 FILE NO/S : CC 28 of 2015 BETWEEN : ROCKINGHAM HOLIDAY VILLAGE

Applicant

AND

BRETT CRACKNELL
Respondent

Catchwords:

Default notice ­ Amount of rent outstanding ­ Day specified for payment of rent outstanding ­ Compliance with s 39(4)(a) of the Residential Parks (Long­stay Tenants) Act 2006 (WA) ­ Termination notice ­ Incorrect amount of rent outstanding in default notice and notice of termination ­ Default notice and notice of termination not given in accordance with Residential Parks (Long­stay Tenants) Act 2006 (WA) ­ Compliance with s 66(5) of the Residential Parks (Long­stay Tenants) Act 2006 (WA)

Legislation:

Interpretation Act 1984 (WA), s 61(1)(b), s 76, s 76(c)

Residential Parks (Long­stay) Tenants Act 2006 (WA), s 3, s 5(1), s 7(3), s 37, s 38, s 39, s 62(4)(k), s 66, s 91
State Administrative Tribunal Act 2004 (WA), s 15

Result:

Application dismissed

Summary of Tribunal's decision:

The Tribunal found, on the conceded facts, that the applicant's default notice and notice of termination each failed to specify the correct amount of rent outstanding as the date of the respective notices, as required by s 39(2)(a) and s 39(3)(b) of the Residential Parks (Long­stay Tenants) Act 2006 (WA). Therefore, neither the default notice nor the notice of termination complied with s 39 of the Residential Parks (Long­stay Tenants) Act 2006. These failures resulted in the Tribunal concluding that the notices (which were relied upon to substantiate the applicant's claim for an order for vacant possession against the respondent) were, in each case, not given in accordance with the Residential Parks (Long­stay Tenants) Act 2006 as required by s 66(5)(a) of the Residential Parks (Long­stay Tenants) Act 2006. Further, the default notice did not comply with s 39(4)(a) of the Residential Parks (Long­stay Tenants) Act 2006 because the day specified in the default notice for payment of the specified outstanding rent was not at least 14 days 'after' the day that the default notice was given to the respondent, which was no earlier than 7 December 2014, being the date of that notice. The application was dismissed pursuant to s 62(4)(k) of the Residential Parks (Long­stay Tenants) Act 2006.

Category: B

Representation:

Counsel:

Applicant : Mr M Ahern
Respondent : In Person

Solicitors:

Applicant : N/A
Respondent : N/A

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

The application

1 Rockingham Holiday Village (applicant), lodged an application in the Tribunal on 12 January 2015 for an order against Mr Brett Cracknell (respondent) for an order for 'vacant possession due to unpaid rent' pursuant to s 66(2) of the Residential Parks (Long­stay) Tenants Act 2006 (WA) (RP Act).

Proceedings in the Tribunal

2 The application was listed for a directions hearing on 28 January 2015, at which the applicant was ordered to file a copy of the lease agreement made between the applicant and the respondent, pursuant to the RP Act. The application was listed for a final hearing on 26 February 2015.

Issues

1) Is the default notice issued by the applicant to the respondent one that was 'given in accordance with the RP Act'? The answer to this question is 'No'.

2) Is the termination notice issued by the applicant to the respondent one that was 'given in accordance with the RP Act'? The answer to this question is 'No'.

3) May the Tribunal make orders pursuant to s 66(2) of the RP Act for termination of the long­stay agreement and vacant possession of the premises, the subject of the long­stay agreement, where either the default notice or the notice of termination was not given in accordance with the RP Act? The answer to this question is 'No'.

The hearing

3 At the hearing the Tribunal had before it the application which was supported by:

i) a scheduled form 'default notice termination for non­payment of rent' dated 7 December 2014 (default notice);

ii) a scheduled form 'notice of termination by park operator for non­payment of rent (default notice issued)' dated 29 December 2014 (notice of termination);

iii) the applicant's statement of account concerning the respondent's payments and the applicant's charges of rent and utilities in respect of site V169, to and including a charge entered on 7 December 2014 for weekly rent (statement of account as at 7 December 2014); and

iv) the applicant's statement of account concerning the respondent's payments and the applicant's charges of rent and utilities in respect of site V169, to and including a charge entered on 29 December 2014 for weekly rent (statement of account as at 29 December 2014).

The respondent did not file any documents at all in the proceeding.

4 The applicant's representative, Mr Ahern, informed the Tribunal on the morning of the hearing that he had made searches of the applicant's offices and could not locate a written lease agreement between the applicant and the respondent in respect of the leased site V169. The respondent informed the Tribunal that he had a specific recollection of only signing a short application for a lease when he first applied to take up long term residence at the Rockingham Holiday Village and that he did not sign a lease agreement. Mr Ahern, on behalf of the applicant, did not dispute that fact, and stated to the Tribunal that he could not positively assert that a written lease agreement between the parties in the form required by the RP Act or in any written form was ever executed by either party.

5 Mr Ahern also admitted to the Tribunal that as at the morning of the hearing, the respondent had made payment of all outstanding rent and utility charges and that no money was due or owing by the respondent to the applicant. The respondent agreed that he had paid all arrears in rent and utilities and that he had paid rent up to and including 4 March 2015.

6 The applicant pressed the application for an order for vacant possession by the respondent, notwithstanding the payment in full of all arrears, as is the applicant's right as provided for by s 39(4)(c) of the RP Act where the applicant (as the park operator) has given the respondent (as the long­stay tenant)a default notice and a notice of termination in accordance with the RP Act.

The facts

The long­stay agreement

7 The parties agreed to the following facts:

a) The respondent had leased site V169 on a long term basis, that is, for longer than three months prior to October 2014.

b) The lease between the parties was a periodic tenancy.

c) The period of the periodic tenancy was one week.

8 As will be noted below, the applicant conceded that for the relevant period of the long­stay agreement, the respondent was obliged to pay the applicant $300 per week in rent and an additional sum for utilities, which rent and utility payments were payable weekly. The respondent agreed to these facts.

Default notice

9 The default notice is in the scheduled form. It is dated 7 December 2014. It asserts that as at that date, the sum of $1,344.51 was due, and also asserts (inconsistently) that the rent was due on 29October 2014 and also for multiple periods referred to in the statement of account as at 7 December 2014. The statement of account as at 7 December 2014 indicates unpaid weekly rent of $300 and utilities from 29 October 2014 until 6 December 2014, plus a charge of weekly rent on 7 December 2014 in the sum of $350. Clearly this sum could not have been due as at 29 October 2014, as some of the charges were incurred after that date and some of the rent became payable after that date. The amount of $1,344.51 is the sum of the monies that had been recorded in the statement of account as at 7 December 2014 as being payable to and including 7 December 2014. The Tribunal heard from the applicant's representative, Mr Ahern, that the sum of $350 charged to the account on 7 December 2014 is incorrect and that the statement should have recorded a charge of only $300 for weekly rent as at that day.

10 The Tribunal finds that the default notice does not specify the rent outstanding because it specifies an incorrect amount as rent outstanding, for the reasons explained below.

11 The default notice expressly provides that the rent must also be paid by 21 December 2014 ­ exactly 14 days from and including 7 December 2014 or, to put it another way, 13 days after 7 December 2014. The default notice was not and could not have been given to the respondent prior to the date of its issue, being 7 December 2014.

Notice of termination

12 The notice of termination is dated 29 December 2014. It refers to the default notice dated 7 December 2014 and that rent was due as at 21 December 2014 in the sum of $1,351.90. It attaches the statement of account as at 29 December 2014, showing that as at 29 December 2014, the sum of $1,351.90 was due and payable in rent and utilities but that as at 21 December 2014, a lesser sum was due and payable by the respondent to the applicant. The rent outstanding as at 21 December 2014 is therefore not the amount stated in the notice of termination ($1,351.90), and the Tribunal so finds. In the statement of account as at 29 December 2014, there are a number of rental charges at the rate of $350 per week instead of the conceded correct weekly amount of $300. Therefore the amount that was payable to the applicant was less than the amount specified in the notice of termination. The rent outstanding as at 29 December 2014 is therefore not the amount stated in the notice of termination, and the Tribunal so finds.

13 The respondent asserted that the notices were not handed to him or personally served on him, but rather, they were left at his park home on his site, V169. On this issue, the Tribunal has had regard to s 91 of the RP Act which does not in its terms direct that either notice be given to the recipient in a particular manner or mode. The Tribunal concludes therefore that s 76 of the Interpretation Act 1984 (WA) (Interpretation Act) is not precluded from having effect in this matter by s 91 of the RP Act. Section 76(c) of the Interpretation Act permits service of documents to be given under a written law by leaving such documents for the recipient 'at his usual or last known place of abode'. There was no issue in this matter that the respondent's usual place of abode was the relocatable home situated on site V169 at the Rockingham Holiday Village. Nor was it in issue that the respondent had received and was aware of each of the default notice and the notice of termination. The Tribunal concludes that both the default notice and the notice of termination were each given to the respondent for the purposes of the RP Act.

14 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.

Jurisdiction

15 Section 66(2) of the RP Act confers on the Tribunal jurisdiction to make:

(a) an order terminating the long­stay agreement; and

(b) an order requiring the long­stay tenant to give vacant possession of the premises to the park operator.

This is the provision pursuant to which the applicant has made its application.

16 Section 66(1) of the RP Act provides:

This section applies where ­

(a) a park operator has given a notice of termination to a long­stay tenant under section 39(1)(a) or (b) on the grounds that the tenant has not paid rent in accordance with the long­stay 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.

17 In this proceeding the applicant is the park operator as that term is defined in the glossary to the RP Act: s 3 of the RP Act. It was not in issue that:

• the respondent had been a tenant at the Rockingham Holiday Village for more than three months prior to October 2014 when the dispute first arose;

• the applicant granted the respondent a right of occupancy over site V169 at the applicant's park with a relocatable home provided by the applicant on the basis of an agreement that the respondent was a weekly periodic tenant; and

• at least from October 2014, the respondenthad agreed to pay the applicant a weekly amount of $300 rent plus utility charges.

18 Although not in the form prescribed by the RP Act or in writing at all, the agreement between the parties meets the definition of a long­stay agreement as defined in s 5(1) of the RP Act and the glossary. Relevantly, s 7(3) of the RP Act provides:

… this Act applies to and in respect of the long-stay agreement to the extent that it can be applied, as if the agreement had been made in accordance with this Act.

19 The Tribunal concludes that: the parties are parties to a long­stay agreement within the meaning of that term provided for in the RP Act; the applicant is the park operator within the meaning of that term as provided for in the RP Act; and the respondent is the long­stay 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.

20 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: s 15 of the State Administrative Tribunal Act 2004 (WA).

The law

21 In order for the applicant 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.

22 In order to succeed in obtaining an order for termination of the long­stay agreement between the parties and an order for vacant possession of the site in question, pursuant to s 66(2) of the RP Act, both the default notice and the notice of termination must have been given 'under s 39(1)(b)' and 'given in accordance with the [RP Act]'. The Tribunal concludes 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 and in the Interpretation Act). The words 'gave' and 'given in accordance with [the RP Act]' in s 66(5) of the RP Act however, must refer to the information in the default notice and the notice of termination as prescribed by the RP Act (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).

23 Section 39(3)(a) of the RP Act requires that the default notice 'must - specify the amount of rent outstanding'. The Tribunal acknowledges that 'rent' is defined in the RP Act to mean the amount paid or payable under the long­stay agreement by the long­stay tenant and therefore includes the utility costs charged (s 3 of the RP Act and the glossary). The amount specified in the default notice as rent outstanding must reflect that sum which is legally payable pursuant to the long­stay 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 in s 39(3)(a) of the RP Act as read with the definition of rent, to reflect the rent payable under or pursuant to the relevant long­stay agreement. In this case, the default notice called for payment of a sum as outstanding rent, the whole of which sum was not payable under the long­stay agreement between the parties. As the default notice does not specify the amount of rent payable under or pursuant to the long­stay agreement between the parties, the default notice is not one that complies with s 39(3)(a) of the RP Act. Such 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],' in the Tribunal's view. The Tribunal concludes that the default notice does not meet the requirement of s 39(3)(a) of the RP Act and that such a notice therefore cannot support an application pursuant to s 66(2) of the RP Act because of the provisions of s 66(5)(a) of the RP Act.

24 Further, s 39(3)(b) of the RP Act requires that the default notice 'specify the day on or before which the park operator requires the amount to be paid'. The 'amount' is a reference to the amount specified in the default notice as the outstanding rent payable under or pursuant to the long­stay agreement between the parties. Section 39(3)(c) of the RP Act requires the default notice to inform the long­stay tenant that if the amount specified is not paid by the 'specified day' for payment of the outstanding rent identified, the park operator may give the long­stay tenant a notice of termination The 'specified day' for payment of that sum is recorded in the default notice as 21 December 2014.

25 Section 39(4) of the RP Act provides that where the park operator gives a default notice to the long­stay tenant under s 39(1)(b) of the RP Act:

(a) the day specified in the default notice must be at least 14 days after the day on which the default notice was given to the tenant[.]

26 In this matter, the day specified for the payment of the rent is not at least 14 days after the day on which the notice was given to the respondent, even assuming that the default notice was given to the respondent on 7 December 2014 (which is the earliest possible date it could have been given).

27 In computing the period expressed in s 39(4)(a) of the RP Act as 'at least 14 days after' the date on which the default notice was given to the respondent, the day on which the default notice was given is to be excluded: s 61(1)(b) of the Interpretation Act. It follows that if the default notice was given to the respondent by leaving the default notice at the respondent's usual place of abode (the park home on site V169) on 7 December 2014, the minimum 14 day period that must elapse before a valid day for payment of the outstanding rent may be demanded and specified in the default notice expired on 22 December 2014 and not 21 December 2014. The Tribunal concludes that the applicant failed to specify in the default notice the correct date upon which the outstanding rent was to be paid and after which a notice of termination may be issued so as to comply with s 39(4)(a) of the RP Act.

28 The Tribunal concludes that the default notice does not comply with the requirements of s 39(4)(a) of the RP Act and such a notice therefore cannot support an application pursuant to s 66(2) of the RP Act because of the provisions of s 66(5)(a) of the RP Act.

29 Similarly to s 39(3) of the RP Act, s 39(2) of the RP Act provides that the notice of termination must specify the amount of rent outstanding: s 39(2)(a) of the RP Act. As stated above, the rent outstanding as identified in the notice of termination under consideration in this matter is not the rent that is payable under or pursuant to the long­stay agreement as at the date of the termination notice (29 December 2014) because it overstates the amount payable by reason of the inclusion of several entries of $350 for weekly rent instead of $300, as explained earlier. Nor does it refer to the correct outstanding rent under the long­stay agreement as at 21 December 2014, a date identified in the notice of termination, because the sum claimed is the balance calculated as at 29 December 2014. It is not therefore a notice of termination that meets the requirements of s 39(2)(a) of the RP Act and such a notice therefore cannot support an application pursuant to s 66(2) of the RP Act because of the provisions of s 66(5)(a) of the RP Act.

The Tribunal's consideration

30 The Tribunal is satisfied that a periodic long­stay agreement was entered into by the parties more than three months prior to October 2014 and that the period of the periodic tenancy is one week. The Tribunal also finds that the weekly rent for the relevant period before the Tribunal was $300 per week. The Tribunal finds that the default notice is defective because it does not comply with s 39(3)(a) of the RP Act or with s 39(4)(a) of the RP Act.

31 Even if the default notice was compliant with the RP Act, the Tribunal concludes that the notice of termination does not comply with s 39(2)(a) of the RP Act for the reasons referred to.

Conclusion

32 For these reasons, the Tribunal concludes that in respect of issue 1, the default notice is not one that was given to the respondent in accordance with the RP Act for the purposes of s 66(5)(a) of the RP Act. That being the Tribunal's conclusion, the Tribunal further concludes, in respect of issue 3, that the Tribunal may not make an order for termination of the long­stay agreement between the parties, nor may it grant the applicant vacant possession of the leased site V169 pursuant to s 66(2) of the RP Act.

33 In respect of issue 2, the Tribunal concludes that the notice of termination is not one that was given in accordance with the RP Act for the purposes of s 66(5)(a) of the RP Act, owing to the defect in the statement of the outstanding rent specified therein. For this reason as well, the Tribunal concludes that it may not make the orders sought pursuant to s 66(2) of the RP Act.

34 Accordingly, the Tribunal refuses the applicant's application pursuant to s 66(2) of the RP Act for termination of the long­stay agreement and vacant possession of the site leased by the respondent (site V169), and the proceeding is dismissed.

Orders

For these reasons the Tribunal made the following orders on 26 February 2015:

1. The applicant's application for an order requiring the respondent to give vacant possession of the premises to the park operator pursuant to s 66(2) of the Residential Parks (Long­stay Tenants) Act 2006 (WA) is refused.

2. The application is dismissed pursuant to s 62(4)(k) of the Residential Parks (Long­stay Tenants) Act 2006 (WA).

I certify that this and the preceding [34] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MS N OWEN-CONWAY, MEMBER