JURISDICTION	:	STATE ADMINISTRATIVE TRIBUNAL 

STREAM	:	COMMERCIAL & CIVIL 

ACT	:	RESIDENTIAL PARKS (LONG-STAY TENANTS) ACT 2006 (WA) 

CITATION	:	ROULSTON and BAYSCOPE PTY LTD [2010] WASAT 157 

MEMBER	:	DR B DE VILLIERS (MEMBER) 

HEARD	:	12 OCTOBER 2010 

DELIVERED	:	27 OCTOBER 2010 

FILE NO/S	:	CC 1085 of 2010 

BETWEEN	:	JOHN DUDLEY ROULSTON
Applicant
 
AND
 
BAYSCOPE PTY LTD
Respondent 

Catchwords:
Residential parks long stay ­ Notice of default ­ Notice of termination ­ Requirements for notices to be valid - When is a residential stay contract terminated ­ Test for termination of tenancy - Can compensation be claimed if tenant vacates premises voluntarily 
Legislation:
Residential Parks (Long­stay Tenants) Act 2006 (WA), s 33, s 33(1), s 33(2), s 33(3), s 40, s 42, s 42(1), s 46, s 46(1), s 46(1)(b), s 65(1), s 65(2),  
Result:
The application is dismissed 
Category:    B 

Representation:
Counsel:
Applicant	:	Ms N Joseph
Respondent	:	Mr J Skinner 
Solicitors:
Applicant	:	Sussex Street Community Law Service Inc
Respondent	:	Jackson McDonald 

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:  
Summary of Tribunal's decision
1		Mr Roulston sought compensation for losses he suffered when he sold his mobile home after the tenancy agreement had allegedly been unlawfully terminated by Bayscope Pty Ltd.  Mr Roulston said that he had been handed a default notice in July 2009 which, in itself, was invalid since it failed to comply with the Residential Parks (Long­stay Tenants) Act 2006 (WA)  The default notice was followed in November 2009 with another letter that pressured him into vacating the premises.  He did not seek legal advice at the time since he was overwhelmed and believed he had to give vacant possession.  He sold his mobile home for a substantial loss and he claimed compensation.
2		Bayscope Pty Ltd says that no notice of termination was served on Mr Roulston.  He vacated the premises at the end of the tenancy.  There is no compensation to be paid since the tenancy came to its natural end.  Even if the default notice was valid, Bayscope Pty Ltd did not take any action to enforce it and, most importantly, it did not seek a termination order from the Tribunal.  Mr Roulston also did not approach the Tribunal for relief.  The application should be dismissed.
3		The Tribunal found that the decision of Mr Roulston to vacate the premises was his own and could not be attributed to any unlawful action by Bayscope Pty Ltd.  The purported default notice issued in August 2009 did not comply with the requirements of the Residential Parks (Long­stay Tenants) Act 2006.  No notice of termination was served and the Tribunal did not make an order for Mr Roulston to vacate the premises.  There are therefore no grounds for compensation to be awarded.
4		The Tribunal did not accept the contention of Mr Roulston that the test, whether a tenancy agreement had been terminated, was a subjective test ­ meaning what went on in the mind of the tenant.  The test is an objective one which must be determined on the basis of the provisions of the Residential Parks (Long­stay Tenants) Act 2006.  If those provisions were applied, no unlawful termination occurred.
5		The application was dismissed.
Issue
6		The parties identified two preliminary issues to be determined before submissions could be made on the actual amount of damages, if any, to be awarded:  first, whether the tenancy agreement between the applicant and respondent had been terminated under any of the sections referred to in s 46 of the Residential Parks (Long­stay Tenants) Act 2006 (WA) (RP(LST) Act) and secondly, if 'yes' to the first question, whether the applicant is entitled to compensation under s 65(2) of the RP(LST) Act. 
Background
7		The application was lodged on 5 August 2010 under s 65(1) of the RP(LST) Act.
8		A directions hearing was held on 19 August 2010, at which orders were made for parties to make submissions and for the matter to be heard on 12 October 2010.
9		The hearing took place on 12 October 2010.  Counsel for both parties made submissions.  No witnesses were called to give evidence.  The decision was reserved on the same day.
Summary of facts
10		The facts giving rise to the proceedings are well set out in the respective submissions, but can be summarised as follows:
•	The applicant commenced in May 2007 with a periodic site only tenancy in the caravan park operated by the respondent.
•	The applicant entered into a fixed tenancy for the period 1 May 2009 to 1 November 2009.  Due to the age and frail health of the applicant, the tenancy agreement provided that the tenancy may be extended for another six months, subject to a determination whether the park is suitable to cater for the needs of the applicant.
•	On 29 June 2009, the applicant suffered a health incident while inspecting his car for an oil leak.
•	On 1 July 2009, the respondent issued a 'Default Notice' to the applicant in which he was required to remedy the breach by not later than 15 July 2009.  The Default Notice described the alleged breach as 'endangering health and safety of staff, customers and visitors of Mandurah Caravan and Tourist Park'.
•	On 18 November 2009, a letter was sent by the respondent to the applicant in which he was advised that since he had taken up residence somewhere else, the mobile home had to be removed by not later than 24 December 2009.  The letter further stated that if the mobile home had not been removed by 24 December 2009, the rent free period would end and rent would be charged at the normal rate.
•	The applicant sold the mobile home on 30 November 2009 and vacated the premises.
Statutory framework
11		The provisions of s 65(1), s 46(1) and s 33 of the RP(LST) Act are as follows:
65.	Determination of compensation payable to long­stay tenant
(1)	A party to a long­stay agreement may apply to the State Administrative Tribunal for a determination of the amount of compensation to which the long­stay tenant is entitled under section 46 in relation to the agreement.
46.	When long­stay tenant is entitled to compensation
(1)	A long­stay tenant under a long­stay agreement for a fixed term is entitled to compensation for loss incurred as a result of the termination of the long­stay agreement ­
(a)	under section 41 (termination if vacant possession required on sale of park); 
(b)	under section 42 (termination by park operator without grounds); 
(c)	under section 45 (termination if agreement frustrated); or
(d)	under an order under section 73 (termination on grounds of hardship to park operator).
33.	How long­stay agreements are terminated
(1)	If a long­stay tenant or park operator gives a notice of termination of a long­stay agreement, the agreement is terminated when both of the following events have happened ­ 
(a)	the period of notice, or any shorter or longer period agreed between the tenant and the park operator, has ended; and
(b)	the tenant has given vacant possession of the agreed premises to the park operator.
(2)	A long­stay agreement for a fixed term is terminated when both of the following events have occurred ­
(a)	the fixed term has ended; and
(b)	the tenant has given vacant possession of the agreed premises to the park operator.
(3)	In any other case, a long­stay agreement ends when ­
(a)	the State Administrative Tribunal terminates the agreement under Part 5;
…
Contentions
12		Counsel for both parties made written and oral submissions.  Those submissions can be summarised as follows.
13		Ms Joseph contends for the applicant as follows:
•	The applicant was subjected to mistreatment by the respondent who had abused its powers and intimidated an elderly person by way of threatening behaviour and letters.  In the mind of the applicant, the tenancy had been terminated and he was left with no choice but to sell his mobile home at a loss. 
•	The Default Notice issued on 1 July 2009 did not comply with the provisions of the RP(LST) Act since no particulars of breach were provided.  In any case, it is clear that the respondent was intending for the applicant to vacate the premises without delay.  It seems as if the respondent intended for the Default Notice to also serve the purpose of a termination notice.  This is in breach of the RP(LST) Act.
•	The letter by the respondent, dated 18 November 2009, put further pressure on the applicant to vacate the premises.  The letter (again) demonstrates that the sole intention of the respondent was to force the applicant to vacate the premises.
•	The tenancy was in fact terminated 'without grounds' and therefore compensation is payable pursuant to s 46(1) of the RP(LST) Act.
•	The applicant had 'no choice' but to sell the mobile home at a loss.
•	The RP(LST) Act provides an adequate basis to support the extent of claim lodged by the applicant.
14		Mr Skinner contends for the respondent as follows:
•	The applicant vacated the premises on 30 November 2010 when the tenancy came to an end.  There was no termination of tenancy that could give rise to compensation.
•	The Default Notice of 1 July 2009 was not in itself a sufficient ground for the applicant to vacate the premises.
•	No notice of termination was ever issued.
•	The test whether the tenancy had been terminated is not what the applicant thought subjectively, but what had happened objectively.
•	The applicant should have sought legal advice or should have approached the Tribunal if a dispute had arisen.  All the evidence points towards him vacating the premises voluntarily. 
•	No compensation is payable since none of the requirements of s 46 of the RP(LST) Act have been established.
•	If indeed compensation is payable, the extent of compensation claimed is not supported by the RP(LST) Act and further submissions are required in regard to quantum.
Consideration
15		The RP(LST) Act sets out in s 46(1) the grounds upon which a tenant may claim compensation for the termination of a long-stay agreement. 
16		The applicant must show that the facts in this application can be 'pigeonholed' to fit one of the requirements of s 46(1) of the RP(LST) Act.  If the facts do not fall within the ambit of s 46(1) of the RP(LST) Act, no compensation can be claimed and the application must be dismissed.
17		Four grounds for compensation are provided for in s 46(1) of the RP(LST) Act namely:
(a)	under section 41 (termination if vacant possession required on sale of park); 
(b)	under section 42 (termination by park operator without grounds); 
(c)	under section 45 (termination if agreement frustrated); or
(d)	under an order under section 73 (termination on grounds of hardship to park operator).
18		The applicant accepts that the tenancy was not terminated under paras (a), (c) or (d) above. 
19		The applicant contends the tenancy was terminated 'without grounds' as per s 42 of the RP(LST) Act (s 46(1)(b)).
20		The Tribunal will now consider the evidence before it to determine if the tenancy was terminated by the respondent without grounds. 
21		The tenancy agreement provided for a tenancy commencing on 1 May 2009 to 1 November 2009.  It is not contested that vacant possession was given on 30 November 2009. 
22		Mr Skinner contends that the tenancy had merely run its course and that the applicant sold his mobile home and gave vacant possession at the end of the terms of the tenancy.  According to Mr Skinner, the way in which the tenancy was terminated does not fall within any of the items provided for in s 46(1) of the RP(LST) Act, and he contends that cannot be classified as a termination 'without grounds'.
23		Ms Joseph contends that the tenancy had been terminated without grounds since the concerns raised in the Default Notice of 1 July 2009 did not meet the requirements of the RP(LST) Act.  She contends that the Default Notice fell short of the statutory standard required of a default notice on grounds that the real, albeit hidden, motive of the respondent was to obtain vacant possession and not remedial action; no other particulars were provided as to what constituted the alleged default and there was no reasonable opportunity for the applicant to address any concerns of substance that the respondent might have had.  Ms Joseph contended that the concerns expressed in the Default Notice of 1 July 2009 about the health and safety of staff were completely unsubstantiated, vague and not in compliance with the RP(LST) Act.
24		The Tribunal concurs with Ms Joseph's analysis of potential shortcomings of the Default Notice of 1 July 2009.  It does appear as if the notice was too vague, that the remedial actions required were not clearly specified and that the Notice would not withstand the test of scrutiny.  The RP(LST) Act in s 40 requires very specific information for a default notice to be valid.  The reason is obvious; namely, that the tenant must be given an opportunity to address the cause of the Default Notice before a notice of termination is issued.
25		But herein lies the problem for the applicant in these proceedings.  While it is agreed that the Default Notice lacked the necessary substance, no notice of termination was issued and no proceedings were commenced in the Tribunal for the agreement to be terminated.  The Default Notice was therefore not in compliance with the RP(LST) Act, but even if it had been, no notice of termination was issued.  Section 42 of the RP(LST) Act contains detailed requirements that a notice of termination without grounds must comply with.  The Default Notice does not state that the tenancy is terminated under s 42(1); it does not specify a day when vacant possession is required; the days which are identified (14) are to 'remedy' the breach and not to vacate the premises; the period is, in any event, not compliant with the 180 days specified by the RP(LST) Act; and a fixed term tenancy may not be terminated before the expiry of the term.
26		The Default Notice does not comply with the requirements of s 42 to be regarded as a notice of termination.  No other notice of termination was issued.  
27		As a result, the Tribunal cannot agree with Ms Joseph that the Notice of Default should be construed as if it was a notice of termination without grounds.  
28		Ms Joseph agreed during the hearing, in reply to a question by the Tribunal, that no formal notice of termination had been issued.  Ms Joseph therefore agreed that neither the Default Notice nor the letter of 18 November 2009 constituted a termination notice under s 42.  The letter of 18 November 2009 merely informed the applicant of the respondent's understanding of the situation.  The Tribunal, in fact, perceives the letter to be rather sympathetic in that the applicant is offered additional rent free time before the mobile home is removed.
29		The Tribunal accepts that the applicant's understanding of the correspondence might have been that the tenancy agreement had been terminated or that he was under pressure to vacate the premises.  The mindset of the applicant is, however, not the test to be applied in these proceedings.  The test by which to assess the conduct of the parties is found in the requirements of the RP(LST) Act and then to determine whether the behaviour of the respondent was appropriate or not.
30		The RP(LST) Act provides in great detail for the processes to be followed in the case of a notice of default and a notice of termination so as to provide certainty to all parties and to protect the interests of landlord and tenant.  The detail required to be provided in such notices is intended to assist both parties and to prevent a situation where the landlord could, for example, by making threats of a termination, in effect terminate a tenancy. 
31		The Tribunal understands the concern expressed by Ms Joseph that a landlord should not be allowed, by threatening a tenant with eviction, to get their own way.  But that is where the protection offered by the RP(LST) Act enters the scene.  No tenant is required to act on an improper or incomplete notice of default or a notice of termination.  In any event, any dispute about the legality of a notice of default or a notice of termination can be referred to the Tribunal. 
32		In the same way that the applicant is now seeking assistance from the Tribunal in regard to compensation, he could have approached the relevant government agency or the Tribunal, after the so called 'Default Notice' had been issued, to obtain assistance.  The applicant could also have ignored the 'Default Notice' until a proper default notice or notice of termination was issued.  His decision to vacate the premises on 30 November 2009, at the expiry of the conclusion of the lease, seems to have been voluntarily.  It most certainly was not, on the information available to the Tribunal, as a result of a notice of termination or by way of an order of the Tribunal. 
33		The Tribunal therefore does not accept the contention that the applicant was forced to vacate the premises and forced to sell his mobile home due to the actions of the respondent by terminating the lease.
34		Section 33 of the Act sets out how long­stay agreements are terminated.  Three grounds are provided for, namely:
(1)	If a long­stay tenant or park operator gives a notice of termination of a long­stay agreement, the agreement is terminated when both of the following events have happened ­ 
(a)	the period of notice, or any shorter or longer period agreed between the tenant and the park operator, has ended; and
(b)	the tenant has given vacant possession of the agreed premises to the park operator.
(2)	A long­stay agreement for a fixed term is terminated when both of the following events have occurred ­
(a)	the fixed term has ended; and
(b)	the tenant has given vacant possession of the agreed premises to the park operator.
(3)	In any other case, a long­stay agreement ends when ­ 
(a)	the State Administrative Tribunal terminates the agreement under Part 5;
…
35		The Tribunal enquired from Ms Joseph during the hearing how she contends the agreement has been terminated.  She nominated s 33(1) of the RP(LST) Act, according to which a period of notice was given and the tenant gave vacant possession after the notice date. 
36		The Tribunal does not accept this contention.  Ms Joseph agrees that there was in fact no termination notice at all and, as a result, there was no date shorter than the date provided for in the tenancy agreement upon which vacant possession had to be given.  The facts in these proceedings do not fall within the category of s 33(1) of the RP(LST) Act.
37		The Tribunal also requested Mr Skinner to explain which of the ways in which a tenancy could be terminated was applicable to these proceedings.  He nominated s 33(2) of the RP(LST) Act since, according to him, the fixed term tenancy had ended and the applicant had given vacant possession of the premises.
38		The Tribunal prefers the submission of Mr Skinner to that of Ms Joseph.
39		The applicant vacated the premises on 30 November 2009 after he had sold his mobile home and after the fixed term tenancy had expired.  There is no evidence to suggest that the tenancy had been extended by six months, as was mooted as a possibility, when the agreement was concluded.  The Tribunal also did not make an order under s 33(3) of the RP(LST) Act for the tenancy to be terminated.  
40		In conclusion, the Tribunal does not accept the contention by the applicant that the tenancy was terminated without grounds.  As a result, the requirements of s 42 and s 46 of the RP(LST) Act are not met and the application must be dismissed.
Order
The application is dismissed.

I certify that this and the preceding [40] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________
DR B DE VILLIERS, MEMBER