Shortland and Belvedere Caravan Park

Case •

[2014] WASAT 149

•

23 SEPTEMBER 2014

No judgment structure available for this case.

SHORTLAND and BELVEDERE CARAVAN PARK [2014] WASAT 149



STATE ADMINISTRATIVE TRIBUNALCitation No:[2014] WASAT 149
31/10/2014
RESIDENTIAL PARKS (LONG-STAY TENANTS) ACT 2006 (WA)
Case No:CC:602/201412 AUGUST 2014
Coram:MS N OWEN-CONWAY (MEMBER)23/09/14
35Judgment Part:1 of 1
Result: Consolidation of application
Consolidated application dismissed
B
PDF Version
Parties:WAYNE SHORTLAND
BELVEDERE CARAVAN PARK

Catchwords:
Periodic tenancy ­ Location of site ­ Subject of lease ­ Park rules ­ Turns on own facts

Legislation:
Caravan Parks and Camping Grounds Act 1995 (WA)
Residential Parks (Long­Stay Tenants) Act 2006 (WA), s 12, s 14, s 19(1), s 20, s 25, s 30, s 40, s 42, s 43, s 46, s 46(1), s 62, s 63, s 64, s 65, s 68, s 68(4), s 82, s 82(2), s 83(1), s 84, s 95, s 95(2)(b), s 95(2)(c), Pt 5
Residential Parks (Long­Stay Tenants) Regulations 2007 (WA), reg 11
State Administrative Tribunal Act 2004 (WA), s 83(1)

Case References:
Nil

Orders
On the application heard on 12 August 2014 by Member Natasha Owen-Conway, it is on 23 September 2014 ordered that:,1. The proceeding in CC 1104 of 2014 is consolidated with the proceeding in CC 602 of 2014 with the proceeding in CC 602 of 2014 being the lead matter in the consolidated proceeding.,2. The respondent is released from the undertaking made to the Tribunal on 13 May 2014.,3. The default notice dated 22 April 2014 and the termination notice dated 6 May 2014 are set aside.,4. By consent of the parties the default notice dated 21 March 2014 and any termination notice based upon the default referred to in the default notice dated 21 March 2014 is set aside.,5. Otherwise the application is dismissed.

Summary
Mr Shortland had entered into a periodic long stay agreement regulated by the Residential Parks (Long­Stay Tenants) Act 2006 (WA).  Mr Shortland challenged the park operator's assertion that he was parking offsite and had placed too many vehicles on his site in breach of the agreement.  The Tribunal held that Mr Shortland's assertions concerning the boundaries of the site were not correct.  Mr Shortland challenged the park operator's notice of termination without cause.  The Tribunal dismissed that challenge and dismissed all other complaints received.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : RESIDENTIAL PARKS (LONG-STAY TENANTS) ACT 2006 (WA) CITATION : SHORTLAND and BELVEDERE CARAVAN PARK [2014] WASAT 149 MEMBER : MS N OWEN-CONWAY (MEMBER) HEARD : 12 AUGUST 2014 DELIVERED : 23 SEPTEMBER 2014 PUBLISHED : 31 OCTOBER 2014 FILE NO/S : CC 602 of 2014 BETWEEN : WAYNE SHORTLAND
    Applicant

    AND

    BELVEDERE CARAVAN PARK
    Respondent

Catchwords:

Periodic tenancy ­ Location of site ­ Subject of lease ­ Park rules ­ Turns on own facts

Legislation:

Caravan Parks and Camping Grounds Act 1995 (WA)


Residential Parks (Long­Stay Tenants) Act 2006 (WA), s 12, s 14, s 19(1), s 20, s 25, s 30, s 40, s 42, s 43, s 46, s 46(1), s 62, s 63, s 64, s 65, s 68, s 68(4), s 82, s 82(2), s 83(1), s 84, s 95, s 95(2)(b), s 95(2)(c), Pt 5
Residential Parks (Long­Stay Tenants) Regulations 2007 (WA), reg 11
State Administrative Tribunal Act 2004 (WA), s 83(1)

Result:

Consolidation of application


Consolidated application dismissed

Summary of Tribunal's decision:

Mr Shortland had entered into a periodic long stay agreement regulated by the Residential Parks (Long­Stay Tenants) Act 2006 (WA). Mr Shortland challenged the park operator's assertion that he was parking offsite and had placed too many vehicles on his site in breach of the agreement. The Tribunal held that Mr Shortland's assertions concerning the boundaries of the site were not correct. Mr Shortland challenged the park operator's notice of termination without cause. The Tribunal dismissed that challenge and dismissed all other complaints received.


Category: B


Representation:

Counsel:


    Applicant : In Person
    Respondent : Ms T Page (Acting as Agent)
    Mr and Mrs Pascoe (Acting as Agents)

Solicitors:

    Applicant : N/A
    Respondent : N/A



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

Nil
REASONS FOR DECISION OF THE TRIBUNAL:
    The Tribunal's reasons comprise an edited version of the oral reasons published on 23 September 2014.


Applications 1 and 2

1 The proceedings concern the Residential Parks (Long-Stay Tenants) Act 2006 (WA) (Act).




Application 1

2 On 7 May 2014 Mr Shortland (applicant) filed an application against Belvedere Caravan Park (respondent) (Application 1, Exhibit 1). Belvedere Caravan Park is the business name owned by Immaculate Pty Ltd and it operates the residential park in issue, situated in Hazelmere. Application 1 against the respondent seeks the following orders:


    1. That all moneys paid by [the applicant] for any fees or charges be refunded, both past and that future charges be nil, until [the applicant] has/can exercise his full lease rights.

    2. That [the applicant] be paid any other costs incurred not limited to legal fees and outside storage fees.

    3. That [the applicant] be awarded damages for emotional distress caused by the park operator[']s breaches of the [A]ct and lease agreement.

    4. That as the park operators are fully aware of the [A]ct[']s obligations (prior defences [sic]) that all statutory FINES be imposed to all their breeches [sic].

    5. That the park operators be restrained from taking any action against [the applicant], without application to this [T]ribunal.

    6. That [the respondent] consider[s] every request made by the tenants without prejudice.

    7. That the park operator immediately address the various species of ant issues in the park and not tell tenants that it is their responsibility.

    8. That the park owners be fined fully for their breaches of the relevant [A]cts in this case.

    9. May 2014 lease increase not to be effective due to lack of notice (45 days).

    10. Any eviction notice or demand notice be revoked and no other notice be given to [the applicant] without an order from this Tribunal.

    11. That [the respondent] do all things as required (pest, fence) within 14 days.


3 The grounds of the application for the orders sought are as follows:

    1. on grounds of email and picture evidence, and other attachments

    2. on the grounds that [the applicant] has been bullied, intimidated, harassed and blackmailed, and he is entitled to not be treated this [way];

    3. continual breeches [sic] of the [A]cts and of the lease agreement;

    4. that 7 weeks advance was illegal (including document fee).


4 Application 1 was accompanied by over 200 pages of documentation. A list of that documentation will be separately attached to these reasons (Annexure A). There was no attempt by the applicant in this proceeding to order the documents attached to Application 1 so as to make their relevance obvious, and, if relevant, what grounds the documents related to. The documents were repetitive and voluminous and at no stage during the course of the hearing did the applicant make the vast majority of the documentation relevant to the proceedings.


Interim Relief

5 Application 1 was also accompanied by an application for interim relief. The interim application sought orders in the following terms:


    1. [T]hat when I pay my $199.50 in lease fees that it fully goes off my lease fees, and not a pro rata amount, after a $75 false storage weekly fee has been deducted.

    2. [T]hat the owners and managers be restrained from any action to/against [the applicant], until a determination.

    3. [T]hat the owners and managers, and [T]ammy [P]age be restrained from, intimidating [the applicant] by email or by any other means.

    4. [T]hat [the applicant] be reasonably allowed to have his second car, and other vehicles on his 120 sq metre site, above as allowed in the lease. as they fit.


6 Only order sought number 2 on the interim application was truly an application for interim relief. The balance of the orders sought by way of interim application were in the nature of final relief. For the reasons referred to below, orders sought in terms of numbers 3 and 4 in the interim application were not and are not capable of being granted by the Tribunal.

7 As to order sought number 2 on the interim application, the respondent undertook at the interim application hearing on 13 May 2014 not to take any steps for the removal of the applicant from the lease premises within the park until resolution of the substantive application ­ that is, Application 1 ­ or further order of the Tribunal. The balance of the application for interim relief was dismissed. For the reasons that will be referred to in the Tribunal's reasons, the respondent will be relieved from that undertaking.

8 The reason why orders in terms of order sought numbers 3 and 4 of the interim relief cannot be made and were not made are briefly: firstly, the applicant's order sought number 3 was beyond the power of the Tribunal and, in particular, s 62 of the Act. In essence, the applicant wished to have the respondent and its servants or agents restrained from emailing him or communicating information to him that he considered to be confronting and disagreed with. Clearly, this is an improper application while the parties were in dispute, and no order can be made to prevent legitimate communications, albeit that the substance of the communication is distasteful to the applicant.

9 The order sought number 3 of the interim application reappears in the form of final relief requested in Application 1 or Application 2 in various ways. It is referred to as part of damages for emotional distress or for intimidation. The Tribunal has informed the applicant during the course of the hearing that making a case and advancing it does not amount to evidence of intimidation, harassment or oppression, notwithstanding how unhappy the recipient of the information might be to receive that information.

10 As to order sought number 4 of the interim application, that application is essentially an application for final relief and is not appropriate to be considered on an interim application, because all of the evidence must be heard. The nature of an interim application is to receive temporary orders rather than final orders.




Mediation

11 Following the hearing of Application 1 for directions, that application was listed for mediation. The mediation was terminated on 23 May 2014 without resolution and the matter was listed for further directions on 10 June 2014.

12 On that day the Tribunal listed Application 1 for final hearing and also ordered that the central issue in the proceeding is the position and configuration of leased Lot 143 as determined by a lease agreement signed by the applicant on 11 September 2013 and by the respondent on 24 September 2013. The application was originally listed for final hearing on 23 July 2014. However, that date was vacated because of the unavailability of the presiding Tribunal member owing to illness. Application 1 was then relisted for final hearing on 11 August 2014.




Application 2

13 On 5 August 2014, six days before the final hearing of Application 1 was listed, the applicant issued a second application. This is the matter referred to in CC 1104 of 2014 (Application 2). The applicant sought 25 orders for relief in Application 2. Those orders are as follows:


    1. set aside an [sic] notice of termination by park operator. dated 20.3.2014 given 22.3.2014

    2. set aside an [sic] notice of termination by park operator. dated 6.5.2014 given 8.5.2014

    3. set aside lease fee increase (45 days['] notice)

    4. restraining order on the park operator, manager, and staff from any new action or intimidation or contact, without successful application to this [T]ribunal.

    5. enforce lease rights (exclusive use), (no restriction), (lease area), as at start of lease.

    6. order a full refund of all payments made by the tenant. from start of lease to full enforcement of lease rights. {19(1)(a). of the act}

    7. order damages claimed on park operator,

    8. option to have relocated the tenant to another site or park at the park operator[']s cost

    9. change clause 4a, (1), (2), (3) to 4 [people]

    10. refund $ paid in clause 10. {12(1) of the act.}

    11. refund $20 key bond fee not on lease

    12. remove clause 17

    13. and other orders needed resulting from the discovery during the hearing or part.

    14. also refund $200 fee (screening) many definitions for photocopying of lease. (fine)

    15. order the payment of all fines for breeches [sic] of the act on the park operator, as the S.A.T is the jurisdictional authority for this act, as defined by it being the administer [sic] of this act, therefore, being the prosecuting authority for it also.

    16. order a long stay agreement for a period of 5 years (non periodic) only terminatable [sic] or transferable only by the tenant. With an order under section 82(2), [t]hat section 44(2) and 44(3) is exempt

    17. under section 63 of the act

    18. under section 65 of the act

    19. under section 53 of the act

    20. exclude section 43

    21. under section 46

    22. orders as per [SAT] case 602/2014

    23. other orders to resolve inconsistencies discovered in hearings

    24. park operator to act on pest management (ants)

    25. administer penalties on the park operator for breeches [sic].


14 The orders sought by Application 2 read in the form of a stream of consciousness which has no form and very little consideration as to the true justiciable rights of the applicant against the respondent arising from the facts in issue. There is a very substantial overlap between Applications 1 and 2. In truth, orders sought numbers 1, 2, 3, 4, 5, 6, 14, 24, and part of each of 25 and 15 of Application 2, are really reproductions or particularisation of a number of the orders sought in Application 1. For this reason, the Tribunal shall order that the two proceedings are consolidated. There will, therefore, be one order dealing with the consolidated proceeding comprising Applications 1 and 2.

15 Application 2 is accompanied by a further 225 pages of documentation in support (Exhibit 9). A list of that documentation will be separately attached to these reasons (Annexure 2). This second bundle of documents very substantially overlapped the documents filed with Application 1. Again, no attempt was made by the applicant to make these documents relevant, although on this occasion the documents had been put into categories A through to J and given some rudimentary headings, but the documents themselves were not the subject of any direction by the applicant.

16 What is immediately apparent to the Tribunal is that in relation to Application 2, order sought number 1, there was no document filed by the applicant concerning a notice of termination by the park operator, dated 20 March 2014. That document was not provided to the Tribunal by the applicant until the second day of the final hearing on 12 August 2014; it became Exhibit 10. The applicant had provided a copy of the default notice preceding termination for non-payment of rent, which is dated 21 March 2014. The Tribunal notes that that notice of default and any termination notice issued in reliance on that default notice was, by consent of the representatives of the respondent, agreed to be set aside, and, accordingly, an order to that effect will be made at the conclusion of these reasons. The applicant also provided a default notice for breaches other than non-payment of rent, dated 22 April 2014. At no time did the applicant provide to the Tribunal a copy of the termination notice for reasons other than non-payment of rent, dated 6 May 2014, which completed the picture, and which document is, in fact, referred to in Application 2, order sought number 2. The termination notice for reasons other than the non-payment of rent, dated 6 May 2014, was provided to the Tribunal by facsimile by the respondent's agent, Ms Tammy Page, on or about 8 May 2014.

17 The termination notice referred to specifically in Application 2, order sought number 1 ­ that is, the termination without cause ­ dated 20 March 2014, was not provided to the Tribunal with Application 1 or Application 2.

18 The documents were poorly identified, poorly ordered, and the most important document (the notice of termination without cause) was not before the Tribunal at all until the date of the final hearing.




Orders sought, evidence, findings and law

19 It is convenient to determine the orders that the Tribunal will make in terms of the categories of orders that were sought rather than a chronological order. The most hotly contested issue and the only real true issue in these proceedings will be left until last.




• Fines

20 It is convenient to deal with this issue across both Applications 1 and 2.

21 Application 1, orders sought numbers 4 and 8, and Application 2, orders sought numbers 15 and 25, in part, refer to fines. The Tribunal dismisses the applicant's applications for orders to impose various fines upon the respondent. This aspect of the applicant's proceedings is entirely misconceived and has no legal foundation. Such orders are not within the Tribunal's jurisdiction. The applicant asserts in Application 2 that this Tribunal is the 'jurisdictional authority' for the Act and it is 'the administer' of the Act, and, therefore, the 'prosecuting authority' (see: Application 2, order sought number 15).

22 Part 5 of the Act refers to the State Administrative Tribunal's powers. Specifically, s 62 of the Act confers on the Tribunal jurisdiction to hear, determine, resolve by the grant of specific relief or various forms of relief, breaches of a long­stay agreement as defined by the Act and any other dispute that arises under or in connection with an agreement, or in connection with any payment to be made under or in connection with such an agreement. The Tribunal notes that the power conferred on the Tribunal by s 62 of the Act does not extend to making an order where there is a dispute concerning the operation of a particular provision or a payment made under a provision of the Act. The balance of Pt 5 of the Act, so far as the Tribunal is concerned, largely confers various specific powers on the Tribunal and entitles the parties to make various applications for specific relief to the Tribunal for the exercise of those powers. There is no power conferred by the Act (in Pt 5 or otherwise) on the Tribunal to fine any party to an agreement under any provision of the Act.

23 This is to be contrasted by the provisions of s 84 of the Act. The Commissioner, as defined under s 84 of the Act, may investigate and take action, including by way of prosecution, upon the complaint of any party to an agreement against any party to an agreement for an offence against the Act or an infringement of the party's rights arising out of an agreement governed by the Act.

24 It is noted that the applicant brought his complaints to the attention of the Department of Commerce Consumer Protection (see letter from the Department of Commerce Consumer Protection, dated 14 March 2014), but there is no evidence before the Tribunal as to what action, if any, was taken by the Commissioner. Whatever the Commissioner had decided to do, the Tribunal is not empowered to fine the respondent for any alleged breaches of the Act. The applicant's application for the imposition of fines is beyond this Tribunal's power and for that reason the applications for those orders sought will be dismissed.




• Restraining the respondent from taking any action without application to the Tribunal

25 This issue concerns Application 1, order sought number 5, and Application 2, order sought number 4. There is no power in this Tribunal to prevent the park operator from taking any lawful action that it may take by way of issuing notices of default, notices of termination, and issuing legitimate communication in the advancement of the dispute. The Tribunal is not empowered to restrain the respondent from exercising its legitimate rights as they might arise under an agreement or under the Act. The Tribunal does not have a supervisory power over park operators. For these reasons, the applications in respect of the orders sought mentioned will be dismissed as being beyond the Tribunal's power and are without legal merit and are misconceived.




• Damages against park operator

26 This issue concerns Application 1, order sought number 3, and Application 2, order sought number 7. The applicant entered into an agreement for a periodic tenancy on 11 September 2013 which continued for three months or longer. The applicant did not enter into an agreement for a lease for a fixed term of three months or longer. The Act confers jurisdiction upon the Tribunal to award damages in limited circumstances. Section 46 of the Act provides when a tenant may be entitled to compensation as follows:


    (1) A long-stay tenant under a long-stay agreement for a fixed term is entitled to compensation for loss incurred as a result of the termination of the long-stay agreement ­

      (a) under section 41 (termination if vacant possession required on sale of park); or

      (b) under section 42 (termination by park operator without grounds); or

      (c) under section 45 (termination if agreement frustrated); or

      (d) under an order under section 73 (termination on grounds of hardship to park operator).


    (2) The amount payable is the amount agreed between the long-stay tenant and the park operator or, if the parties cannot agree, the amount determined by the State Administrative Tribunal on an application under section 65. (Tribunal's emphasis)

27 The provisions of s 46 of the Act, and therefore the entitlement to be paid compensation to be assessed, only applies where the long-stay agreement that is terminated by one of the specified events referred to in s 46(1) of the Act is for a fixed term.

28 As the applicant's agreement is for a periodic tenancy that has exceeded three months, s 46 of the Act does not apply to the applicant in the event that the agreement is terminated by the issue of a notice of termination without cause, pursuant to s 42 of the Act, as has ultimately been the case in this proceeding. Accordingly, Application 1 in respect of order sought number 3, and Application 2 in respect of order sought number 7 is dismissed. There is no power in the Tribunal to order damages against a park operator in the case of a periodic tenancy where the periodic tenancy is lawfully terminated pursuant to a notice of termination without cause, pursuant to s 42 of the Act.




• Option to have the tenant relocated to another site at the park operator's cost

29 This concerns Application 2, order sought number 8. There is no power in the Tribunal to order this 'option'. To the extent that there is any power conferred on the Tribunal to delve into the cost or the machinations of relocating a relocatable home from one site to another park, or to another site in the park, the power is limited to s 46 and s 65 of the Act (refer to above) ­ that is, such power is limited to matters concerning a fixed lease. For the reasons referred to above, those powers have no application on the facts of this case as it concerns an agreement for a periodic tenancy that has exceeded three months.

30 For this reason the application for such orders is also dismissed.

31 The Tribunal notes that this 'option' might have been available to the applicant by way of a mediated outcome ­ that is, by negotiated agreement between the parties. The parties were afforded the opportunity to mediate and resolve the dispute directly, but no resolution was achieved.




• Emotional distress damages and damages generally

32 This issue concerns Application 1, order sought number 3 and Application 2, order sought number 7. There is no basis in law, or in fact, to support this application. The applicant has not identified a breach of contract or a tort that could entitle him to compensation for emotional distress. He has not identified any provision that would entitle him to such damages under the Act, or which is within the Tribunal's power to grant. Apart from feeling that he was intimidated and that he has been in dispute with the respondent, the applicant has not produced any evidence of damage of the kind claimed.

33 As stated earlier in these reasons, advancing a case by the respondent and the respondent relying upon its legal rights and entitlements does not automatically amount to a case of oppression, harassment, duress or any other kind of common law or equitable claim justifying relief that could be granted by a common or equitable court. Certainly there is no power under the provisions of the Act bestowed upon the Tribunal to grant such relief, in any event. In this particular case, not only is there no power, but there were no facts advanced to justify a claim for emotional distress. Accordingly, the application in that respect is also dismissed.




• Refund of all moneys paid

34 This issue concerns Application 1, order sought number 1, and Application 2, order sought number 6. In the case of Application 1, order sought number 1, no basis is identified upon which the Tribunal could or should order the repayment of all moneys paid by the applicant. In the case of Application 2, order sought number 6, the application does not appear to be based on s 19(1) of the Act. Section 19(1) of the Act provides that a party to an agreement is entitled to recover an amount paid to the other under mistake of fact or law relating to the agreement.

35 No mistake of fact or law has been identified by the applicant in either Application 1 or 2. No mistake of law or fact was ever identified or hinted at by the applicant in the course of the proceeding. There is no foundation to the applicant's claim for this kind of relief. An application for recovery of money pursuant to a mistake of fact or law relating to the agreement is a specific kind of application and requires specific issues of fact to be considered.

36 Whilst one party may have paid money to the other in breach of the Act, it is not a question of mistake of fact or law, as advanced by the applicant. For these reasons, Application 1, order sought number 1, and Application 2, order sought number 2, is dismissed.




• Refund of moneys paid under clause 10

37 This issue concerns Application 2, order sought number 10. Clause 10 of the agreement in issue provides that $1,197 is to be paid by the applicant 'before' or by the sixth week of the periodic tenancy. Section 25 of the Act prohibits requesting more than two weeks of rent in advance in the case of this kind of agreement. Clause 10 provides that the sum of $1,197 is two weeks rent in advance. However, it is not. That figure amounts to six lots of $199.50, which specifically is referred to in the lease as the weekly rent ­ that is, that sum ($1,197) is six weeks of rent. However, the clause does not request six weeks rent be paid in advance. It requests and requires that six weeks of rent, effectively, be paid by the first six weeks of the tenancy ­ that is, the applicant had five weeks within which to pay that six weeks rent. At best, it could be seen as one week of rent in advance. The applicant asserted that he was compelled to pay the amount ($1,197) initially and, therefore, was obliged to pay six weeks rent in advance. The express words of clause 10 of the agreement did not require the applicant to have paid six weeks rent in advance. The applicant did not give evidence that Mrs Pascoe (who manned the office and dealt with the applicant when entering into the lease) stated that he was obliged to pay six weeks of rent in advance, or that she demanded payment of six weeks of rent in advance. Further, the applicant did not cross-examine Mrs Pascoe to challenge her evidence that she did not demand payment of six weeks of rent in advance on entry into the agreement. Accordingly, there is no evidence that notwithstanding the words of clause 10, the respondent demanded and compelled the applicant to pay six weeks of rent in advance. Certainly, the words of the provision do not require that the applicant pay six weeks of rent in advance, as was his assertion. Accordingly, Application 2, order sought number 10 is dismissed.




• Rent review unlawful

38 This issue concerns Application 1, order sought number 9, and Application 2, order sought number 3. The agreement permits the respondent to vary the weekly rent by 5% on the review date. The review date is set under the agreement as 1 May of every year, and the agreement requires that the respondent shall advise the tenant of the rent payable from each review date at least 60 days prior to each of the review dates. The agreement also permits the first review date to occur earlier than 12 months from the beginning of the tenancy, but thereafter the rent may not be reviewed at intervals of less than 12 months.

39 All of these terms are consistent with the provisions of s 30 of the Act. The applicant in both applications seeks to set aside the rental increase because he received 45 days' notice of the reviewed rent instead of 60 days. No evidence was led on this issue. Whilst the Tribunal might have power to grant an order as sought by the applicant, there is no evidence before the Tribunal as to when the rent was increased, by how much, and how many days' notice of the reviewed rent was provided by the respondent to the applicant.

40 The applicant, in filing his documentation in support of Applications 1 and 2, made no attempt to identify the documents in chronological, or any other logical order, such as category of orders sought. The Tribunal has reviewed all of the pages of the documents filed in support of Application 1 and Application 2, which amounts to over 500 pages, and the Tribunal has not been able to locate a letter or notice concerning the review of weekly rent. Certainly none was referred to by either party to the Tribunal. Therefore, the Tribunal cannot identify the notice given; the value of the reviewed rent; whether the uplift in the reviewed rent exceeds 5% of the original rent; or, whether there is a breach of the terms of the agreement or the Act that insufficient notice was provided. Accordingly, Application 1, order sought number 9, and Application 2, order sought number 3, are dismissed.




• Refund of $200 fee

41 This issue concerns Application 2, order sought number 14. The applicant seeks an order that he be refunded a '$200 fee (screening) many definitions for photocopying of the lease'. He requests that a fine be imposed. For the reasons already discussed, the Tribunal has no power to impose a fine.

42 The payment of $200 is noted on the statement of payments produced by the respondent on 16 June 2014 in this proceeding. It is referred to as a 'document preparation' fee. The Tribunal notes that the sum includes GST. Section 14 of the Act provides that the operator must bear the costs of preparation of the lease unless the agreement 'expressly provides otherwise'.

43 The provisions of this lease do not refer to the cost of preparing of the lease. The agreement does not refer to the applicant or the respondent being responsible for document preparation or the costs thereof. Unless the agreement expressly provides that the applicant will be responsible for the costs of preparation of the lease, the respondent is not entitled to claim this sum of money from the applicant. None of the respondent's witnesses addressed this issue. It has never been addressed in submission (oral or written) and it was not addressed by Mr or Mrs Pascoe (respondent's agents) at the final hearing on 12 August 2014.

44 The Tribunal concludes that this sum of money was paid in breach of s 12 of the Act. Section 12 of the Act prohibits payments that are not authorised by the Act. Specifically, s 12(2)(c) and s 95 of the Act authorise certain payments under the Act. Section 14 of the Act is an example of a payment, if it is expressly provided for in the agreement, that is authorised by the Act. Section 95(2)(c) of the Act provides that the regulations may prescribe maximum amounts that may be charged by the park operator pursuant to the matters prescribed by s 95(2)(b) of the Act. Section 95(2)(b) of the Act refers to additional kinds of payments to which the park operator may be entitled. Regulation 11 of the Residential Parks (Long­Stay Tenants) Regulations 2007 (WA) (Regulations) provides that the maximum amount payable under s 95(2)(c) of the Act in respect of a charge referrable in Sch 8, item 12 of the Act is $200, but that is not a payment that is relevant to this proceeding. That kind of payment is only available where the park operator is not a real estate agent, but has been involved in, or has been authorised to sell, a relocatable home on a site to another person. They are not the facts here. I can find no reason to justify the demand or the receipt of the $200 sum. However, that sum of money is not recoverable by action or by proceedings in this Tribunal.

45 Section 12(5) of the Act provides a fee, charge or reward accepted in contravention of that section is recoverable by the person who paid it, as a debt due in a court of competent jurisdiction. This Tribunal is not a court, and the recovery of the sum as a debt cannot be affected by this Tribunal. This is a matter that should properly be brought before a court of competent jurisdiction and not the Tribunal. It is not the Tribunal that determines the demarcation as to which jurisdiction is a proper jurisdiction. That is a matter for the Parliament, and the Parliament has determined that any receipt of money that is made in breach of s 12 of the Act, or otherwise not authorised by the Act, can be recovered as a debt due in a court of competent jurisdiction, and not in the Tribunal. Application 2, order sought number 14 is dismissed for want of jurisdiction.




• $20 refund

46 This issue concerns Application 2, order sought number 11. The applicant asserts that he was charged $20 as a bond for the park ablution key. This appears to be consistent with the entry on the statement of accounts issued by the respondent. However, for the reasons referred to above, this sum is not recoverable in this Tribunal. Accordingly, Application 2, order sought number 11, is dismissed for want of jurisdiction.




• Variation of the agreement

47 This issue concerns Application 2, orders sought numbers 9, 12, 16, 20, 17, 18 and 19. A number of the orders sought are nonsensical, such as orders sought numbers 17, 18, 19, which refer to particular provisions of the Act and nothing more. The Tribunal reiterates the earlier comments that some of the reasoning applied by the applicant in commencing and prosecuting Application 2 is consistent with a stream of consciousness approach, and a rifling through the Act to identify various sections that might be available to him, but on scrutiny are not.

48 In Application 2, the applicant seeks a series of orders to vary the terms of the lease agreement, which he executed on 11 September 2013, and which the respondent executed on 24 September 2013. By order sought number 9, he seeks an order that clause 4(a), subclause (1), (2) and (3) of the agreement be altered to 'four'. By that, the Tribunal understands the applicant to mean that he seeks that the number of people permitted to stay on the site for the rental instalment of $199 per week, under the terms of the agreement, should be altered from one person to four people.

49 He also seeks, in terms of order sought number 12, to 'remove clause 17' which is a clause that prohibits children from living on the site. In fact, the Tribunal acknowledges that Mrs Pascoe readily agreed that, notwithstanding clause 17, the applicant was permitted to have his children to stay overnight on the site for various nights each fortnight at an additional cost. It appears that clause 17 was never enforced and was largely ignored by the respondent.

50 As to whether or not the respondent is entitled to prohibit children from living on the premises, the Tribunal makes no comment. Section 20 of the Act governs the entitlement to refuse or prohibit children from living on a park site, and concerns matters that were not before the Tribunal, particularly whether there is a licence issued under the Caravan Parks and Camping Grounds Act 1995 (WA), and whether the licence permits the park operator to include such a term in the agreement, or whether there is evidence that the respondent operates the park as a 'lifestyle village', as referred to in the Act. Regardless of whether the Act has been breached by the inclusion of clause 17, the applicant was in fact always permitted to have his children on the leased premises, but at an additional and specific cost.

51 There is no basis for the Tribunal to modify or vary the agreement as sought in any event. Section 82 of the Act only empowers the Tribunal to modify the operation of the Act in any case, not to modify the agreement. Sections 62 to 65 of the Act do not identify any specific powers to modify the agreement ­ that is, to modify or rectify the agreement in the event of any mistake, mutual mistake, unilateral mistake, misrepresentation, misleading conduct, or any similar kinds of claims.

52 The Tribunal considers that there is no power to vary or modify the agreement as sought, and, in any event, there are no facts advanced to justify why the Tribunal would ever modify the agreement freely entered into between the parties in the absence of any fact relevant to modification. For these reasons, Application 2, orders sought numbers 9 and 12 are dismissed.

53 The next type of variation sought is a variation of the agreement to fix the term for a five year period ('(non periodic) only terminatable [sic] or transferable only by the tenant [or the Tribunal]', as provided in Application 2 order sought number 16). This application is an attempt by the applicant to persuade the Tribunal to vary the terms of the agreement for a periodic tenancy that has operated for more than three months into a long-stay agreement for a fixed period of five years. The Tribunal has already referred to the consequences of termination of an agreement for a fixed period. It enlivens the Tribunal's jurisdiction to grant compensation (s 46 of the Act). There is no power in the Tribunal to vary the terms of the periodic agreement, as mentioned, and none was ever drawn to the Tribunal's attention by the applicant.

54 It was clear to the applicant when he was provided with a copy of the specific agreement he signed on the day that he executed (and before he executed it, according to the evidence of Mrs Pascoe), that it was a periodic site only lease agreement, and for good measure the front page of the agreement provides a warning as follows:


    You could be given 180 days notice to vacate the site without explanation and you MIGHT NOT receive compensation for losses incurred, such as relocation expenses.

55 The applicant knew, or is taken to have known that by signing the periodic tenancy agreement, particularly with the words 'periodic tenancy' and the warning, that he had executed a periodic lease agreement, rather than a fixed term lease agreement. For these reasons, the orders sought in terms of order numbers 9, 12, 16, 18, 19 and 20 are dismissed.


• Exclusion of s 43 of the Act

56 This issue concerns Application 2, order sought number 20. The applicant seeks an order to exclude the operation of s 43 of the Act to the lease agreement. Presumably this is an application made pursuant to s 82 of the Act, which is the only provision in the Act which empowers the Tribunal to modify the operation of the Act in any particular case. There is no basis identified for why the Tribunal would exercise the discretionary power conferred by s 82(2) of the Act in this particular case to exclude the operation of s 43 of the Act.

57 Section 43 of the Act is a provision for the benefit of the respondent, such that it may not be taken to have waived a breach for the notice for termination based upon a breach of payment of rent or other breach, in the event that the respondent makes a demand for or commences proceedings for the recovery, or accepts any rent after it becomes aware of any breach. There is no basis that the applicant has advanced to justify excluding the operation of s 43 of the Act, and as the respondent has conceded that the notice of termination for non-payment of rent be set aside, there is no basis on the facts for such a claim. It is simply not relevant to the narrative between the parties concerning their dispute.




• Exclusion of s 44(2) and s 44(3) of the Act

58 This issue concerns Application 2, order sought number 16, in part. Section 44(2) and s 44(3) of the Act do not apply to this proceeding. Section 44(2) and s 44(3) of the Act refer to a notice of termination without grounds, issued by a tenant. In this case the applicant, as the tenant, has not ever issued a notice of termination without grounds. It is not relevant to the facts before the Tribunal. Presumably the applicant relies upon s 82(2) of the Act as the source of the Tribunal's power to set aside or to modify the operation of the Act to the agreement. Again, there is no factual foundation for why the Tribunal would be persuaded to exercise that power in this matter. Application 2, order sought number 16, in part, is entirely misconceived, without foundation, and is frivolous and vexatious. For this reason, it shall be dismissed.




• Application 1, order sought number 22

59 The Tribunal dismisses Application 1, order sought number 22, on the basis that it is frivolous, vexatious, repetitive, and therefore an abuse of process.




• Application 2, orders sought numbers 13 and 23

60 As to Application 2, orders sought numbers 13 and 23, the applicant intends for the Tribunal to make an order that resolves all the inconsistencies that have been discovered in the hearing or in the course of the investigation leading to the final hearing. There is no merit in this application.

61 It is for the applicant to identify the basis of any relief, and the cause of or claim to any relief, and the facts that justify any exercise of a power by the Tribunal. It is not for the applicant to simply adduce large volumes of information either during the course of the hearing or before, by way of documentation, and insist that the Tribunal investigate the matter. Investigation is the area for the Commissioner who is appointed pursuant to s 84 of the Act. The Tribunal has certain powers to resolve disputes, not to identify disputes.




• Various

62 There are a number of matters that can be grouped together including:


    1) the respondent consider every request made by the tenant without prejudice (Application 1, order sought number 6);

    2) the respondent immediately address various species of ants included in the park, and not tell the tenants it is their responsibility (Application 1, order sought number 7; Application 2, order sought number 24); and

    3) the park operators do all things as required (pest, fence) within 14 days (Application 1, order sought number 11).


63 As to the ant issue, there was no evidence provided to the Tribunal about this issue. There is nothing to support the allegation. The Tribunal has stated that the Tribunal is not empowered to monitor the work of a park operator. It does not sit in supervision or review of park operators' decisions. The Tribunal is not aware of sufficient information to properly identify what the dispute comprises. Application 1, orders sought numbers 7 and 11, and Application 2, order sought number 24, are dismissed as being vexatious, without foundation and wholly misconceived.

64 As to the applicant's requests of the respondent, it is noted that the applicant made various requests, almost from the beginning of his tenancy, for the inclusion of a shed and variations to the leased site, each of which have been refused by the respondent.

65 The agreement provides that written approval of the park operator must be obtained before any works are commenced. The applicant has repeatedly requested that his 'reasonable' requests be approved: to attach a carport and a shed; repair the outside of his park home; do various things within his park home; get a copy of the plans for the park to allow his application to proceed with the local municipal council (which application was not provided to the Tribunal); and, have tradespersons or others assess and assist him with his onsite work. There is nothing in the agreement or in the Act that prevents the applicant from making repairs to his park home. In fact, he is required to keep it in good repair and neat and clean. The applicant therefore did not require the respondent's consent or approval to maintain his park home.

66 The respondent has refused the applicant's request to attach a carport or a shed, or to do anything else in the way of structural alterations to his park home and annexe, because, according to the email of 17 January 2014 from the respondent, the applicant has refused to meet the respondent's request that the applicant remove a car, a boat, and a trailer from his site or near his site, which he is not permitted to have positioned onsite or near his site. The applicant ignored the respondent's direction. The applicant continued to refuse to remove his car, boat, or trailer from the site until almost the commencement of these proceedings. Application 1, order sought number 6 is dismissed.

67 There is no evidence before the Tribunal that the applications were reasonable, and there is evidence before the Tribunal that the applicant refused to comply with a reasonable request of the respondent to comply with the terms of his agreement first before the respondent would consider his new applications for attaching a carport, a shed or any other structural alterations to his park home.




• The leased site

68 This brings us conveniently to the next and major issue concerning Applications 1 and 2. This issue concerns Application 1, orders sought numbers 1, 2, 5 and 10, and Application 2, orders sought numbers 1, 2 and 5. The applicant's use of his site to accommodate more than two 'vehicles' (defined in the park rules and the agreement to include boats and trailers), and the site boundaries of the applicant's leased site (site) are central to this issue. By the time this matter reached the Tribunal, the respondent was of the view that the applicant had breached his agreement by positioning more than two defined vehicles on the site, and because he was using other areas of the park as storage for various vehicles. In short, the respondent billed the applicant $75 a week for 'storage'. It was conceded early in these proceedings by the respondent that there was no basis to charge the applicant $75 a week for 'storage'.

69 The applicant asserts that the area of his lease site is an area of land that is 12 metres wide along the road and 10 metres deep on each side, running away from the road. The respondent says that the area of the applicant's site is 10 metres along the road and 12 metres running away from the road, on each side. The terms of the agreement provide that the applicant's lot is 'site 143', and the area of the site is 12 metres by 10 metres, totalling 120m². The general or broad geographic position of the site is set out on the evacuation plan, which is Annexure 2 to the agreement.

70 The applicant did not sign the agreement with Annexure 2 actually attached. The applicant already had a copy of Annexure 2 and a copy of the park rules (also annexed to the agreement) well before he signed the agreement on 11 September 2013. The evidence of Mrs Pascoe and the applicant is that he was given a copy of the evacuation plan and the park rules when he enquired about a lease of the site and before he made application to be considered for approval to lease a site, some days earlier. The Tribunal considers on those surrounding circumstances that the evacuation plan and the rules, although they weren't physically attached to the agreement at the time that he signed them, were intended by both the applicant and the respondent to be incorporated into the agreement as referred to in the agreement.

71 The evacuation plan indicates that the site (143) is less wide than it is deep, consistent with the respondent's assertion of the layout of the site. The evacuation plan is not to scale, and there is no information other than the orientation of the rectangular lot that is helpful to the Tribunal.

72 In either case, that is, on either the applicant or the respondent's geographical position of the site, a fence protruded into the site at the rear. If the respondent's assertion is correct, that is, that the site is less wide than it is deep, the protrusion of the fence was less intrusive and amounted to approximately 4 to 7 metres not being available for the applicant to use.

73 If the applicant is correct and the orientation of the site is wider than it is deep, the intrusion of the fence appeared to be slightly greater, but not significantly so.

74 Given that the evacuation plan indicates that the frontage and the width of the site is shorter than the side boundaries of the site, the Tribunal finds that the dimensions of the site are 10 metres along the road and 12 metres back from the road, as advanced by the respondent ­ that is, the Tribunal does not accept the applicant's evidence about the geographical location of the site.

75 The applicant's only evidence to support the contention that the site is wider along the road than it is deeper back from the road was that the person from whom he purchased the relocatable home positioned on the site, known only to the Tribunal as 'Alice', had indicated to him, by gesture of her hand, that she was permitted to park her car in an area to the side of the site. In his submission to the Tribunal on 15 May 2014 the applicant asserted:


    When I purchased site 143, Belvedere Caravan Park, Mandurah, the office told me, 'Alice knows what's going on.' She showed me ­
    that is, Alice 'showed' the applicant the site,

      No other person showed me the site. Alice showed me the site and said, 'It is a walkway to the east, and that because of that,' pointing to the fence area, 'we just go up there,' pointing to the hose reel west of the home, 'for parking'[.]

    That is, the representation as to the boundaries of the site, and where parking was permitted, was made by the prior owner of the relocatable home from whom the applicant bought the relocatable home that was in situ on the site. Alice was the prior lessee of the site. Alice's representation is not a representation that can be attributed to the respondent. Mrs Pascoe gave evidence that she made no comment to the applicant about the relocatable home. She said she does not get involved in the relocatable home sales. She gave the applicant a copy of the agreement. She said she also gave the applicant an application to complete to be considered for approval, along with the rules and the evacuation plan, and he took the rules and the plan away. Mrs Pascoe gave evidence that when the applicant returned on 11 September 2013 he executed the agreement and was given as much time as he required to read the same; he signed the same, and he retained a copy of the park evacuation plan and the rules. She gave evidence that she photocopied and gave the applicant a copy of the agreement as soon as practicable after it had been executed by the respondent, which was not until 24 September 2013. There is no evidence to support the assertion made by the applicant on 15 May 2014 that the site was positioned as he asserted or that he was free to park cars offsite, and he did not give evidence that the respondent's office attendant said anything to him about the dimensions and position of the site or the parking of cars.

76 As a consequence of this dispute, the applicant parked his Fairlane, a boat on a trailer, a road trailer and another vehicle, a BMW, next to his relocatable home and annexe ­ that is, on site 143 and offsite 143 to the west of the site. The park rules, which form part of the agreement, provide that boats and trailers cannot be stored within the site area without the consent of management, being the respondent. It is common cause that the applicant did not receive the consent of management. The Tribunal finds that the applicant assumed that he could park his vehicles anywhere to the west of the annexe on the site, whether it was on his site or not, because of a representation Alice had made to him.

77 The only evidence of that representation is what the applicant said Alice said to him. No attempt was made to identify Alice; to call Alice, or to obtain any objective material that would justify that Alice made that representation. There was even less evidence to support that Alice's representation can be attributed to the respondent. If the applicant relied on Alice's representation to bind the respondent, he should not have, and the respondent is not bound by the representations made by Alice on the facts of this matter. Ultimately, that is the answer to the applicant's complaint against the respondent.

78 The park rules also provide that the tenant must not keep or use more than two vehicles on the site, or only one vehicle if that is all that can fit on the site. As stated, for the purposes of the park rules, 'vehicle' is defined to include a boat and/or a trailer. The applicant was clearly in breach of the park rules which form part of the agreement in parking two vehicles, a boat on a trailer, and a trailer on and offsite 143. The Tribunal has no doubt about that.

79 The respondent's reaction to this breach was curious. The respondent asserted that the applicant was obtaining storage and charged him $75 per week for that storage. Storage fees are referred to in division 5, number 4, clause number 6 of the agreement, and are expressed to be negotiated between the tenant and the park operator. There was no reference in the agreement, or externally, to any negotiated fee for storage between the parties. The only $75 referred to in the agreement is with reference to a claim that may be made by the respondent for additional people staying on the site. The sum of $75 referred to in the agreement has no bearing on the cost of 'storage' and there is no reference in the agreement to storage, nor is there a reference to a negotiated agreement of $75 to be the agreed fee for storage after the entry into the agreement.

80 The applicant was required to pay $75.45 for storage each time he paid his rent, because the $75.45 for storage was added to his account. At the hearing Mr and Mrs Pascoe, who represented the respondent, indicated that the $75 that had been charged had been credited back to the account. The Tribunal examined all of the charges, and found one on 28 April 2014 which purports to be a credit entry to the statement, but was in fact a debit entry to the statement. The Tribunal finds that the respondent is obliged to make payment of the sum of $75.45 to the applicant or should be directed to alter that entry.

81 The Tribunal heard from the parties and, in particular, Ms Page on 23 September 2014 as to the correct order that should be made with respect to this sum of money. Ms Page, for the respondent, stated that the sum of $75.45 was credited to the applicant's account on 3 April 2014 which appears to be a back dated credit. As the money has been credited to the applicant's account, the Tribunal dismisses this aspect of the proceeding.

82 Mr and Mrs Pascoe consented at the final hearing that that the notice of default for the non­payment of rent and that termination notice for non­payment of rent should be set aside. Accordingly, there will be a consent order to that effect. The Tribunal considers that this is a concession by the respondent, that it incorrectly required the applicant to pay $75 (or $75.45) for storage.

83 As stated, Application 2, order sought number 1, targets a termination notice dated 20 March 2014. The Tribunal did not have a copy of that termination notice until the day of the final hearing.

84 That termination notice is a termination notice without grounds, pursuant to s 42 of the Act, issued by the respondent. The Tribunal has examined that termination notice and finds that it complies with all of the provisions of s 42(2), (3) and (4), and s 38 of the Act. The notice of termination without cause dated 20 March 2014 provides that vacant possession is required by 30 September 2014 and allows, in effect, for 194 days from the date of issue of that notice. The applicant asserts that this notice was not served upon him. He says it was delivered to a nine year old girl, his daughter, and not to him. The applicant says he refused to take delivery of the notice, and instead Mr Pascoe gave it to his nine year old daughter. During the course of the hearing, the Tribunal received into evidence Ms Pascoe's notes and heard evidence from Mr Pascoe. Ms Pascoe kept notes on her computer as a record of dealings with the applicant. The entry on 20 March 2014 provides:


    Sent Dave to hand-deliver the 180 notice to Wayne. Wayne refused to take it from him so Dave left it on the inside of his van. Wayne asked what was in the letter. Dave said, 'I don't know as I don't read other people's mail. I was just asked to deliver it to you'.

85 Mr Pascoe gave evidence that he gave the notice to the applicant consistently with Mrs Pascoe's note. He said there was one occasion where he issued a notice, and the applicant refused to take the notice so he left it with his daughter who was immediately outside the van. He said this was a later notice. The Tribunal considers that it might have been the notice of termination for non-payment of rent dated 21 March 2014, or it might have been the default notice for breaches other than the non­payment of rent dated on 22 April 2014, or the termination notice for breaches other than the non­payment of rent dated 6 May 2014.

86 In the Tribunal's opinion, it was not the notice for termination without grounds dated and delivered on 20 March 2014. The Tribunal finds consistently with that finding and the note in the record kept by Mrs Pascoe that the very first notice of termination, which was the notice of termination without grounds, was placed on the inside of the applicant's relocatable home while the applicant was in the home after having refused to take delivery of that notice from Mr Pascoe's hand. The Tribunal, therefore, finds that the notice of termination without grounds, dated 20 March 2014, is a valid notice and was validly served on the applicant.

87 The Tribunal, therefore, refuses to set aside that notice or hold it to be invalid. The Tribunal will return to the consequences of the issue of the notice of termination without grounds.

88 The one remaining issue is the termination notice for breaches other than non-payment of rent dated 6 May 2014 and the default notice for breaches other than non-payment of rent dated 22 April 2014. The termination notice for breaches other than non-payment of rent was issued pursuant to s 40 of the Act. The Tribunal finds that the default notice for breaches other than non-payment of rent that supports the termination notice for breaches other than non-payment of rent does not describe the breach accurately. It does not describe the breach sufficiently accurately for the applicant, the recipient of the notice, to remedy the breach. At this point the Tribunal notes that the respondent has failed to distinguish between the applicant's obligation to pay rent, the applicant's obligation referred to in the park rules to pay storage at the rate negotiated with the respondent, the prohibition on the applicant against parking more than two vehicles as defined by the rules and agreement on the site, and the prohibition generally against not storing other materials, such as boats and trailers on the site.

89 The respondent failed to identify what is the relevant breach for the purpose of the notice of default and notice of termination for breaches other than non-payment of rent. For this reason the Tribunal considers that the notice of default for breaches other than non-payment of rent is unclear and sets it aside. The notice of default being unclear and set aside cannot, therefore, support the termination notice issued on 6 May 2014, pursuant to s 40 of the Act. Orders will be made for that notice to be set aside.

90 The Tribunal dismisses Application 2, order sought numbers 1 and 5, and Application 1 orders sought numbers 1, 2, 5 and 10, insofar as it concerns the notice of termination without cause dated 20 March 2014. As to the notice of default for breaches other than non-payment of rent and the notice of termination for breaches other than non-payment of rent dated 6 May 2014, the Tribunal shall set the same aside. As to the notice of default for non­payment of rent dated 21 March 2013 and any termination notice reliant upon that notice of default, the Tribunal shall set aside those notices by consent.

91 Returning momentarily to the notice of termination without cause. The Tribunal has not considered whether or not an application for vacant possession should be granted. That is an application that is to be made pursuant to s 68 of the Act by the respondent as the park operator. It is not an application that can be made by the applicant as the tenant.

92 Section 68 of the Act provides that an application for vacant possession must be made within the 30 days after the specified dated, that is, 30 September 2014, which is yet to come to pass. Section 68(4) of the Act provides that the Tribunal may make the orders for possession if a notice of termination was given in accordance with the Act. The Tribunal has found that such a termination notice was given to the applicant in accordance with the Act. If the notice was given, the Tribunal must also be satisfied that terminating the agreement is 'justified' in all of the circumstances.

93 At this point the Tribunal might consider the inaccurate allegations that have been made by the respondent: firstly, that the applicant had failed to pay his rent; second, that the applicant had breached the terms of the lease agreement by parking in the wrong position, when the position of the site was not clear in the agreement; or, thirdly, that the applicant had obtained storage without payment, when determining whether a grant of vacant possession may not be 'justified'. That argument, however, is for another day, and that argument can only be ventilated and debated once and only if the respondent makes an application for vacant possession pursuant to s 68 of the Act.

94 However, the Tribunal wishes to alert the parties that even in the case of a valid notice issued for termination without cause, the Tribunal must be satisfied that terminating the agreement is justified in all of the circumstances, and there have been instances where the Tribunal has refused to terminate the agreement because it does not consider that the termination was justified in all of the circumstances.

95 The applicant has made repeated references throughout the proceedings to the respondent's arbitrary rules, and the making up of arbitrary rules about more than two vehicles being on the property. The applicant has repeatedly asserted as a fact that no one else in the park was aware of the park rules. This evidence and these utterances are completely irrelevant in the circumstances in which the applicant executed a agreement incorporating the park rules, and which rules provide that he is not permitted to have more than two vehicles on his property; that he is not entitled to keep a boat and a trailer as well as two vehicles on his property; and that, properly construed, the site is 10 metres wide along the road and 12 metres deep back from the road.

96 The applicant has also complained that he has lost the benefit of that portion of the site where the respondent's fence protruded into the site. The Tribunal is aware that as at 12 August 2014, and some days before then, Mr and Mrs Pascoe had arranged, on instructions by the respondent, to remove the fence. The applicant told the Tribunal that he did not wish to use that portion of the site because it was muddy and boggy, and instead insisted that he was entitled to use the area to the west of the site because Alice has indicated that was where she had been permitted to park her vehicles.

97 This asserted representation by Alice does no more than suggest that she had a licence to park vehicles west of the site and of itself the alleged representation does not go so far as to suggest that that area is part of the site. The applicant's case in relation to the geographic location of the site has been without foundation and, in the Tribunal's view, is misconceived.

98 The ultimate conclusion of the dispute between the parties has been exacerbated by the 'kitchen sink/catch all' approach that the applicant has taken to these two applications, and has made it lengthy and difficult for the Tribunal to identify and give consideration to the true issues, and come to the correct decision, because there has been a lot of noise generated by complaints that are not truly issues for the Tribunal. The intrusion of the fence into Lot 143 is such an issue.




Conclusion

99 For the reasons referred to, the Tribunal makes the orders as set out below. In publishing these reasons the Tribunal noted that the orders made on 23 September 2014 were made accidentally and in error and omitted the reference to the order setting aside the notice of default for non-payment of rent dated 21 March 2014 and any termination notice reliant thereon. Further, the Tribunal noted that order 3 made on 23 September 2014 accidentally and mistakenly refers to consent orders in relation to the setting aside of the notice of default for breaches other than non-payment of rent dated 22 April 2014 and the termination notice for breaches other than non­payment of rent dated 6 May 2014. The Tribunal shall issue amended orders pursuant to s 83(1) of the State Administrative Tribunal Act 2004 (WA).




Orders


    1. The proceeding in CC 1104 of 2014 is consolidated with the proceeding in CC 602 of 2014 with the proceeding in CC 602 of 2014 being the lead matter in the consolidated proceeding.

    2. The respondent is released from the undertaking made to the Tribunal on 13 May 2014.

    3. The default notice dated 22 April 2014 and the termination notice dated 6 May 2014 are set aside.

    4. By consent of the parties the default notice dated 21 March 2014 and any termination notice based upon the default referred to in the default notice dated 21 March 2014 is set aside.

    5. Otherwise the application is dismissed.






    I certify that this and the preceding [99] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

    ___________________________________

    MS N OWEN-CONWAY, MEMBER






ANNEXURE A




Application 1 is Exhibit 1




Documents attached to Application 1



    1) Application for interim relief (Exhibit 2)

    2) Respondent's tax invoice/receipt dated 12 September 2013 (Exhibit 3)

    3) Default notice ­ other than non­payment of rent dated 22 April 2014

    4) Email respondent's manager to applicant dated 7 January 2014

    5) Printed text message dated 11 April 2014

    6) Complaint Commerce text dated 11 April 2014

    7) Default notice ­ non­payment of rent dated 23 March 2014

    8) Application for long­term tenancy dated 11 September 2013

    9) Questionnaire completed by applicant dated 8 September 2013

    10) Periodic site only agreement between the applicant and the respondent, executed by the applicant on 11 September 2013 and the respondent on 24 September 2013

    11) Annexure 2 ­ Rules for long-stay tenants dated 10 October 2007, signed on 11 September 2013

    12) Copy of condition report ­ site only agreement

    13) Annexure 2 ­ Rules for long-stay tenants dated 16 December 2013, signed by the applicant on 11 September 2013

    14) Incomplete copy of Annexure 2 referred to in (m) above

    15) Letter from respondent to applicant dated 20 February 2014 (noted as given 12 March 2014)

    16) Six coloured photographs and three coloured annotated aerial printouts

    17) Letter from Consumer Protection to applicant dated 14 March 2014

    18) Two coloured annotated aerial printouts

    19) Twelve paged text Belvedere Affidavit, abc drum (text)

    20) Respondent's tax invoices/payments/EFT payments (20 pages)21) Respondent's letter to applicant dated 7 January 2014 concerning amendment to lease

    22) Letter respondent to applicant dated 28 April 2014 concerning rental payment

    23) Letter respondent to applicant dated 11 April 2014

    24) Respondent's tax invoice/receipt/EFT payment (three pages)

    25) Email trail ending 3 February 2014 between applicant and respondent (seven pages)

    26) Copy letter respondent to applicant dated 28 April 2014 concerning rental payment

    27) Email respondent to applicant dated 24 April 2014

    28) Email respondent to applicant dated 28 April 2014

    29) Email respondent to applicant dated 11 April 2014

    30) Email respondent to applicant dated 7 April 2014

    31) Email respondent to applicant dated 7 April 2014

    32) Email respondent to applicant dated 7 April 2014

    33) Email Jackie Wallace to applicant dated 3 April 2014

    34) Email respondent to applicant dated 3 April 2014

    35) Email respondent to applicant dated 1 April 2014

    36) Email respondent to applicant dated 1 April 2014

    37) Copy envelopes addressed to Mr Shortland, 143/153 Mandurah Terrace, Mandurah, WA 6210

    38) Email respondent to applicant dated 24 March 2014

    39) Department of Commerce to respondent dated 28 March 2014

    40) Worksafe WA Division, Department of Commerce to applicant dated 1 April 2014

    41) Five photographs/aerial printouts black and white

    42) Extracts of various emails (four pages)

    43) Copy printout 'twin towers resurrected'

    44) Copy photographs of documents and emails (28 pages)

    45) Email letter respondent to applicant dated 28 February 2014

    46) Note from applicant to respondent, new text document and part plan

    47) Letter respondent to applicant dated 7 January 2014

    48) Text 17 January 2014

    49) Letter respondent to applicant dated 23 January 2014

    50) Belvedere request 'carport and shed' dated 17 January 2014 (text)

    51) Response to letter dated 17 January 2014 (text)

    52) 'Tammie' text

    53) 'Tammie' text

    54) Emails (four pages)

    55) Belvedere Caravan Park Evacuation Plan (annotated)

    56) Email 17 January 2014

    57) Letter respondent to applicant (undated)

    58) Receipts Clement & Co Lawyers dated 7 January 2014

    59) Office Works dated 5 February 2014

    60) Two photographs (black and white)

    61) Copy receipt book Grant Stanton

    62) Email 21 March 2014

    63) Various pages of agreement (five pages)

    64) Two texts

    65) Belvedere request for carport and shed dated 17 January 2014 (text)

    66) Letter respondent to applicant undated

    67) Respondent's tax invoice/statement/EFT (17 pages)

    68) Copy receipt Clement & Co dated 7 January 2014


ANNEXURE B

    Folder A

    1) Tax invoice/receipt issued 12 September 2014

    2) Default notice termination for non­payment of rent dated 21 March 2014

    3) Default notice reasons other than non­payment of rent dated 22 April 2014

    4) Letter respondent to applicant dated 28 April 2014

    5) Letter respondent to applicant dated 28 April 2014

    6) Letter respondent to applicant dated 16 July 2014

    Folder B

    1) Email dated 14 February 2014

    2) Letter Department of Commerce to the applicant dated 14 March 2014

    3) Email dated 20 March 2014

    4) Statutory declaration unsigned applicant

    Folder C

    1) Email dated 8 May 2014

    2) Letter respondent to applicant dated 4 April 2014

    3) Email dated 24 April 2014

    4) Email undated

    5) Email undated

    6) Letter respondent to applicant dated 28 February 2014

    7) Letter respondent to applicant dated 10 March 2014 (unsigned)

    8) Letter respondent to applicant dated 11 April 2014

    9) Letter respondent to applicant dated 28 April 2014

    10) Respondent's tax invoice/receipt dated 28 March 2014

    11) Respondent's tax invoice/receipt dated 4 March 2014

    12) Respondent's tax invoice/receipt dated 12 March 2014

    13) Respondent's tax invoice/receipt dated 25 March 2014

    14) Respondent's tax invoice/receipt dated 23 October 2013

    15) Respondent's tax invoice/receipt dated 25 September 2013

    16) Respondent's tax invoice/receipt dated 13 September 2013

    17) Respondent's tax invoice/receipt dated 17 March 2014

    18) Respondent's tax invoice/receipt dated 17 March 2014

    Folder D

    1) Two texts

    2) Belvedere request for carport and shed dated 17 January 2014 (text)

    3) Grounds

    4) Merry Christmas note '28 January 2014' annotated

    5) Copy document 'twin towers resurrected'

    Folder E

    1) Department of Commerce complaint dated 'Mar 20 2014' (text)



    Folder F

    1) Coloured annotated aerial printouts and photographs, pages 57­115



    Folder G

    1) Document headed 'To SAT CC 602 2014'

    2) Scaled sketch, page 118

    3) Scaled sketch, page 119

    4) Scaled sketch, page 120

    5) Scales sketch, page 121

    6) Scaled sketch, page 122

    7) Scales sketch, page 123

    8) Belvedere Caravan Park annotated evacuation plan, page 124

    9) Non-scaled sketch 'Document 5', page 125



    Folder H

    1) Letter respondent to applicant (undated)

    2) Letter respondent to applicant dated 7 January 2014

    3) Email dated 24 March 2014

    4) Response to document headed 'Re response to your letter dated 17 January 2014'

    5) New text document and part evacuation plan, page 131



    Folder I

    1) Photographs of emails, page 132­217



    Folder J

    1) Application in CC 602 of 2014

    2) Document receipt Grant Stanton

    3) Copy receipt Clement Lawyers dated 7 January 2014

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