The applicant gave evidence that the manager of the park (acting for the respondent) had terminated his lease at the Surfrider Caravan Park on 26 January 2008 for alleged breaches to the lease agreement; namely allowing a guest to insult and abuse the manager and not obeying the park rules.

The applicant states that at about 10 pm on 26 January 2008, the respondent approached him and his guests who were sitting around outside their caravan having a few drinks. The park manager demanded of them in a very dictatorial manner that they reduce the noise that the applicant and his guests were allegedly making. The applicant did not feel that; (i) he and his guests were making excessive noise and (ii) the attitude and approach by the respondent was appropriate to the actual situation in the circumstances.

The applicant and one of his guests challenged the respondent with regards to the respondent's directives to reduce the noise.

The respondent is alleged to have warned the applicant that there would be consequences of his behaviour and claimed that the applicant had breached the lease agreement.

The respondent then disappeared for about 20 minutes or so and then returned with a termination notice in writing, directed at the applicant, advising the applicant, that, as a consequence of his and his guest's behaviour, he was required to give up vacant possession of the site on or before 10 February 2008.

A short time after issuing of the termination notice, the applicant approached the respondent and made an apology and also asked his guest to do the same. On 27 January 2008 (the next morning after the incident), the guest who allegedly intimidated the manager the night before, also approached the manager and apologised.

The applicant claims to have been a good tenant, had never caused any problems in the past and had always paid rent on time.

The applicant sought orders to set aside the termination notice on the grounds that the notice was unjustly harsh given the circumstances of being one off event.

The respondent was represented by Mr Barry Creary who was the park manager of Surfrider Caravan Park at the time of the alleged incident and was the person responsible for the issuing of the termination notice to the applicant.

On the evening of 26 January 2008, just after 10 pm, the respondent's attention was drawn to a group of noisy residents engaged in prolonged Australia Day festivities.

There was a park site rule requiring that all noise being created by the residents was to cease by 10 pm.

The respondent in his role as the park manager approached the noisy residents and asked them to lower the noise and to be considerate to other park residents.

According to the respondent, the applicant is alleged to have resented this directive and challenged the respondent request and also his authority.

A guest of the applicant, who was seated amongst the group and was allegedly quite intoxicated at the time, further challenged the respondent in a threatening and aggressive manner. The applicant's guest allegedly then stood in an intimidating manner, and, moved quite close to the respondent, poked a finger at the respondent's chest and said words to the effect "You won't want to mess with me". He repeated the threat several times.

The respondent claims to have felt quite intimidated and fearful of the threats made by the applicant's guest.

The respondent then returned to the office and filled out a Notice of Termination of Occupation Agreement, requiring the applicant to give up vacant possession by 10 February 2008 and served it on the applicant the same evening.

The Notice of Termination cited the breaches of being abusive and not obeying the park rules.

Under the provisions of section 26 Holiday Parks (Long-term Casual Occupation) Act 2002, the Tribunal has jurisdiction to hear applications relating to any breach or allegation of breach of an occupation agreement or to a disagreement.

Pursuant to section 17 of the Holiday Parks (Long-term Casual Occupation) Act 2002, in every lease agreement there is an undertaking by the occupant not to interfere with or cause or permit interference with, or allow any person that the occupant invites into the holiday park to interfere with the reasonable peace, comfort or privacy of any neighbour of the occupant or any other person lawfully in the holiday park, or the proper use and enjoyment of the holiday park by the other occupants or residents of the holiday park. Also in section 21 of the Act the occupant agrees to be responsible to the park owner for any act or omission by any person the occupant allows on the site, or elsewhere in the holiday park, who breaks any of the terms of this agreement (including any park rules for casual occupants that are terms of this agreement).

The Tribunal also notes that the park manager has authority under section 45 of Holiday Parks (Long-term Casual Occupation) Act 2002 to manage the park and act on behalf of the park owner(s); this includes the issuing of termination notices.

Under the provisions of section 39(1) and (2) Holiday Parks (Long-term Casual Occupation) Act 2002 the park owner (or manager in this instance) may give notice of termination to the occupant if the occupant has breached a term of the agreement. The notice of termination must not specify a day earlier than 7 days after the day on which the notice is given as the day on which vacant possession of the site is to be or will be delivered up to the park owner.

The Tribunal accepts the claim of the respondent that he was threatened by the guest of the applicant and it was the applicant's responsibility to control his guest's behaviour which he failed to do and has therefore breached the terms and conditions of the lease agreement.

The Tribunal finds that the respondent was within his designated authority to direct the applicant and his guest to quieten down so as to preserve the quiet enjoyment of the park to the other residents. The respondent being the manager of the park had a duty of care to the other residents of the park and was quite entitled to request residents to cease excessive noise, including any noise created by the applicant or his guests on the evening in question.

The tribunal is satisfied that the issuing of the termination notice by the park manager was within his authority and the format and content of the termination notice was valid in its configuration.

The applicant shared a co-tenancy with Mr Phillip Robertson, both tenants names appear on the lease agreement. The agreement commenced on 1 November 2003 (approximately 5 years) and the co-tenants took it in turns to make use of the on-site caravan.

The respondent stated that the residents (the applicant and Mr Robertson) were not in arrears with their rent, had always paid on time and had never caused him any trouble in the past.

The Tribunal explained to the applicant that an alleged aggressor only has to intimidate or create fear of impending physical harm to a victim to satisfy the common law standard for assault.

At the hearing, the applicant was quite contrite and sorry for the behaviour of himself and his guest on the evening. He claims that the next morning after the incident he sent his guest to the respondent with an apology. He also claims to have apologised to the respondent the night of the incident and also the next morning himself.

The applicant tendered numerous statements from other guests present at the time of the incident who state that the respondent may have initially over reacted to the applicant's challenge of the respondent's authority.

When considering matters of termination the Tribunal is entitled to look to any hardship likely to be caused to the parties and the circumstances surrounding the alleged breach(s) deemed to have propagated the termination in the first place.

The Tribunal finds that the applicant did breach the lease by not ceasing the noise when requested to do so and by allowing a guest to intimidate and threaten the park manager. The Tribunal in a verbal direction from the bench admonished the behaviour of the applicant in this instance.

The Tribunal however finds that the applicant appears to have only offended or breached once in the whole 5 year term of the occupation and the respondent admits that the occupants were not in arrears with their rent, had always paid on time and had never caused him any trouble in the past, consequently the action of the respondent in the circumstances is judged as being overly harsh given; (i) the previous good record of the applicant with regards to park matters, (ii) the applicant's genuine regret for the incident and (iii) the applicant's cessation of the breaches.

The Tribunal therefore orders that the termination notice be withdrawn and set aside.

It is noted that the Tribunal in setting aside the termination notice does not wish to usurp the general authority and duty of the manager however on the facts the Tribunal found that the serving of a termination notice for this breach was not warranted when considering all of the other relevant circumstances.

On 16 May 2008, the Tribunal ordered the immediate withdrawal and setting aside of the termination notice and that the lease agreement be restored to its original and existing terms and conditions prior to the issuing of the termination notice.

The respondent was advised that they are entitled to make further applications to the Tribunal with regards to any future termination matters should in future the applicant fail to adhere to the rules of the park or breach any other term or condition of the lease agreement.