UPTON and MOULTON
[2024] WASAT 134
•2 DECEMBER 2024
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: RESIDENTIAL PARKS (LONG-STAY TENANTS) ACT 2006 (WA)
CITATION: UPTON and MOULTON [2024] WASAT 134
MEMBER: MS N OLDFIELD, MEMBER
HEARD: 26 NOVEMBER 2024
DELIVERED : 26 NOVEMBER 2024
PUBLISHED : 2 DECEMBER 2024
FILE NO/S: CC 757 of 2024
BETWEEN: NICHOLAS RICHARD UPTON
First Applicant
UPTON RURAL PTY LTD
Second Applicant
AND
TERESA NOELENE MOULTON
Respondent
Catchwords:
Long stay tenancy agreement - Application for vacant possession - Termination notice - Amount of rent outstanding - Day on which vacant possession is required - Specified termination warning to tenant - Signature by the person giving the notice - Compliance with s 66(4) Residential Parks (Long-stay Tenants) Act 2006
Legislation:
Residential Parks (Long-stay Tenants) Act 2006 (WA), s3, s5, s38, s38(1)(b), s39, s39(1)(a), s39(2), s39(2)(a), s39(2)(b), s39(2)(c), s62C, s66, s66(2), s66(4)(a)
State Administrative Tribunal Act 2004 (WA), s63(2)
Result:
Application dismissed
Category: B
Representation:
Counsel:
| First Applicant | : | T G Camp |
| Second Applicant | : | T G Camp |
| Respondent | : | N/A |
Solicitors:
| First Applicant | : | Butcher Paull & Calder |
| Second Applicant | : | Butcher Paull & Calder |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
Myope Pty Ltd t/a Rockingham Holiday Village and Woods-Armes [2022] WASAT 50
Property Developments (WA) Pty Ltd v Lord Forrest Nominees Pty Ltd [2024] WASC 388
Rockingham Holiday Village and Cracknell [2015] WASAT 32
REASONS FOR DECISION OF THE TRIBUNAL:
(The reasons were delivered orally on 26 November 2024 and have been edited from the transcript to correct grammatical errors or infelicity of expression and to insert headings and footnotes.)
Introduction
This was a hearing of matter CC 757 of 2024 which was an application by Nicholas Upton and Upton Rural Pty Ltd against Teresa Moulton seeking orders for the payment of arrears and granting vacant possession pursuant to s 66(2) of the Residential Parks (Long‑stay Tenants) Act 2006 (WA). For convenience I will refer to this Act as the Residential Parks Act.
The hearing
The applicants today were represented by legal practitioner Mr Camp, and Lorna Hughes gave oral evidence today on behalf of the applicants.
Ms Moulton did not attend today's hearing. There was evidence filed that the solicitors for the applicants sent the application form and attachments to the applicant by email on 24 October 2024. I am satisfied, from the material lodged by the applicants, that the email address to which those documents was sent is an email address used by Ms Moulton. That was also the email address used by the Tribunal to send the notice of hearing to Ms Moulton.
I am accordingly satisfied Ms Moulton was given notice of the application and hearing as required and that it was appropriate to proceed with the hearing in her absence pursuant to s 63(2) of the State Administrative Tribunal Act 2004 (WA).
I have taken into consideration the oral evidence and submissions in the hearing today and the various documents lodged by the applicants.
The application
The evidence established, and I am satisfied, Upton Rural Pty Ltd is a park operator and Ms Moulton is a long-stay tenant, as both terms are defined in s 3 and s 5 of the Residential Parks Act. Accordingly, I am satisfied the Tribunal has jurisdiction to hear and determine this matter pursuant to the Residential Parks Act.
Section 66 provides the Tribunal may make orders terminating a long‑stay agreement and requiring the tenant to provide vacant possession only if the park operator's default and termination processes were in accordance with the Residential Parks Act, and the application must also be in accordance with the requirements of that Act.
The termination notice
Pursuant to s 39(1)(a) of the Residential Parks Act, the applicants sought to rely upon a termination notice, which took the form of a letter from Butcher Paull & Calder to Ms Moulton dated 10 October 2024.
The requirements for the validity of the termination notice are contained in s 39(2) and s 38 of the Residential Parks Act.
The amount of rent outstanding
Section 39(2)(a) states the notice must specify the amount of the rent outstanding.[1] I note that 'rent' is defined to mean the amounts payable by the long‑stay tenant, and thus can include electricity charges.
[1] See also Rockingham Holiday Village and Cracknell [2015] WASAT 32 and Myope Pty Ltd t/a Rockingham Holiday Village and Woods-Armes [2022] WASAT 50.
The notice stated the amount of rent and electricity owed by Ms Moulton totalled $6,548. The evidence established that was the amount owed by Ms Moulton on 24 July 2024.
However, the park operator had continued to issue charges for rent and electricity, so the amount actually owed by Ms Moulton on 10 October 2024 was significantly greater.
The applicants stated they were prepared to accept the termination notice operated as a waiver of any future charges, so that the amount owed by Ms Moulton was effectively fixed at the sum set in the termination notice. On that basis I am satisfied the notice complied with s 39(2)(a).
The day on which vacant possession is required
Section 39(2)(b) states the termination notice must specify the day on which vacant possession is required. In this case the notice stated '[f]ailing payment of the amount by the 21 October 2024, you must forthwith vacate site 12' [sic]. The applicants put to me that this should be considered as meaning vacant possession was required on 22 October 2024.
The Macquarie Dictionary[2] defines 'forthwith' as meaning either immediately or as soon as can reasonably be expected. In my view the use of 'forthwith' in the notice is open to interpretation - does it mean 21 October 2024, 22 October 2024 or as soon as is reasonably practicable after 21 October 2024? For this reason, I do not consider use of the word 'forthwith' in the termination notice sufficient to comply with s 39(2)(b).
Termination warning to the tenant
[2] Macquarie Dictionary Online, 2016, Macquarie Dictionary Publishers, an imprint of Pan Macmillan Australia Pty Ltd,
Section 39(2)(c) states the termination notice must tell the tenant that if the amount is not paid in full on or before the specified day, the park operator is entitled to terminate the long-stay agreement under the Residential Parks Act.
That statement was not evident in the applicants' termination notice, but it was put to me that a document entitled termination notice and directing Ms Moulton to pay the rent or vacate, obviously must involve the termination of the long-stay agreement.
That may be so. I expect the same may be said in relation to every termination notice. Nevertheless, the Residential Parks Act states the termination notice must contain those words, rather than be implied by the notice and the circumstances in which it is issued. I am not satisfied the applicants' notice is sufficient compliance with s 39(2)(c).
Signed by the person giving the notice
Section 38(1)(b) states the termination notice must be signed by the person giving the notice. In this instance the termination notice bore the name of the applicants' legal firm in a cursive style of font.
The applicants put to me typewritten signatures were now commonly accepted and that the firm could be considered a person for the purposes of that section. Reference was made to the decision of her Honour Archer J in Property Developments (WA) Pty Ltd v Lord Forrest Nominees Pty Ltd.[3] Relevantly, that decision concerned a contractual clause which required notices given under the contract to be in writing signed by the party giving the notice or an authorised officer of that party. Her Honour at [88] and [89] determined that a notice had been validly signed by the use of the generic firm name.
[3] Property Developments (WA) Pty Ltd v Lord Forrest Nominees Pty Ltd [2024] WASC 388.
I am doubtful of the applicants' position in relation to this point. That decision interprets the terms of a commercial contract between two companies, not s 38 of the Residential Parks Act. Furthermore, the requirements of s 38 and s 39 have been applied strictly. However, given my conclusions in relation to the compliance of the termination notice with s 39 I do not need to reach a concluded view regarding the signing of the notice.
Conclusion
Section 66(4)(a) of the Residential Parks Act states in order for the Tribunal to make orders for vacant possession, the termination notice must be in accordance with that Act.
Given my earlier conclusion that the termination notice did not comply with the requirements of s 39(2)(b) and s 39(2)(c) of the Residential Parks Act, unfortunately the application for orders for vacant possession must fail.
Further, as the application for costs was predicated upon there being a successful application, I am not satisfied there is a basis for awarding the applicants their costs in this proceeding.
Orders
The Tribunal orders:
1.The 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.Pursuant to s 62C of the Residential Parks (Long-stay Tenants) Act 2006 (WA) the application is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS N Oldfield, MEMBER
2 DECEMBER 2024
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