Alex v Homes Victoria
[2023] VSC 310
•8 June 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2023 01216
| JAMY ALEX | Applicant |
| v | |
| HOMES VICTORIA | Respondent |
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JUDGE: | Gorton J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18 May 2023 |
DATE OF JUDGMENT: | 8 June 2023 |
CASE MAY BE CITED AS: | Alex v Homes Victoria |
MEDIUM NEUTRAL CITATION: | [2023] VSC 310 |
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APPEAL – Appeal against VCAT decision dismissing application for creation of a residential rental agreement – Meaning of the terms ‘residing’ and ‘principal place of residence’ – Whether VCAT had regard to irrelevant considerations – Distinction between a consideration being relevant and a consideration being dispositive – VCAT did not have regard to irrelevant considerations - Decision as to Applicant’s ‘principal place of residence’ not reasonably open – Residential Tenancies Act 1997 (Vic) ss 91S and 91T.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms O Ridley (Public Defender, Victoria Legal Aid) | Victoria Legal Aid |
| For the Respondent | Ms J Davidson | Russell Kennedy Lawyers |
HIS HONOUR:
A. Introduction
Jamy Alex, the applicant, is currently living in a public housing unit in Flemington owned by Homes Victoria,[1] the respondent. At present, Mr Alex has no legal right to occupy the unit. Homes Victoria wants Mr Alex to vacate the unit (to make it available for someone else). Mr Alex applied to the Victorian Civil and Administrative Tribunal (‘the Tribunal’) for an order under the Residential Tenancies Act 1997 requiring Homes Victoria to enter into a residential rental agreement with him. The Tribunal dismissed Mr Alex’s application and concluded that Homes Victoria was entitled to a possession order. Mr Alex has now applied under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 for leave to appeal against the dismissal of his application. Any appeal is limited to an appeal on a question of law.
[1]Homes Victoria is a body corporate established under s 9(2) of the Housing Act 1983 (Vic). It was previously known as the Director of Housing.
In order to obtain an order requiring Homes Victoria to enter into a residential rental agreement with him, Mr Alex had to establish, among other things, that the unit was his ‘principal place of residence’. The Tribunal concluded that it was not his principal place of residence. The central issue in this Court is whether the Tribunal erred in law when it so concluded.
B. Background
From 2017, a lady called Ms Komba occupied the unit pursuant to a tenancy agreement with Homes Victoria. On 25 February 2022, Ms Komba moved out to live with her partner and Mr Alex, who is now in his mid-thirties, moved in. Ms Komba and Mr Alex signed a ‘house sitting agreement’ that gave Mr Alex a ‘licence to occupy’ the unit between 25 February 2022 and 20 May 2022. The house sitting agreement required Mr Alex to pay $740 per fortnight to Ms Komba for utilities and other expenses. Homes Victoria was not made aware of this arrangement and did not consent to it. Mr Alex paid the money owing under the agreement.
Mr Alex remained at the unit after 20 May 2022 and continued to make the fortnightly payments until 8 July 2022. There is no suggestion that the house sitting agreement was formally extended. Then, on 15 July 2022, Ms Komba arrived with some associates and asked Mr Alex to vacate the unit. He did not do so. Both parties called the police. According to a police email placed before the Tribunal, Ms Komba told the police that ‘a tenant of hers wouldn’t leave the address’, and Mr Alex told the police that Ms Komba was only asking him to leave because he had accused her of overcharging him for the utility bills.
Shortly after, on 19 July 2022, Homes Victoria terminated Ms Komba’s tenancy and informed Mr Alex that he had to vacate the unit. Ms Komba returned her key. On 8 August 2022, Homes Victoria applied to the Tribunal for a possession order on the grounds that the unit was occupied without its consent.[2] On 5 September 2022, Mr Alex applied for an order under s 91S of the Residential Tenancies Act 1997 requiring Homes Victoria to enter into a tenancy agreement with him. After some procedural obstacles relating to the payment of fees were overcome, the application for a possession order and the application under s 91S came before the Tribunal on 12 January 2023.
C. The proceedings before the Tribunal
[2]Residential Tenancies Act 1997 (Vic) s 344.
There was no dispute that, but for Ms Alex’s claim for an order under s 91S(1) of the Residential Tenancies Act 1997, Homes Victoria would be entitled to a possession order. Sections 91S(1) and 91T(1) of the Residential Tenancies Act 1997 provide as follows:
91S Application to Tribunal for creation of residential rental agreement
(1) A person who has been residing in rented premises as that person's principal place of residence and who is not a party to a residential rental agreement applying to those premises may apply to the Tribunal for an order requiring the residential rental provider of the premises to enter into a residential rental agreement with the person if—
(a)an application for a possession order for the premises has been made under Part 7; or
(b) the renter has abandoned the rented premises; or
(c) the renter has delivered up vacant possession of the rented premises; or
(d) the renter has given a notice of intention to vacate the rented premises; or
(e) the renter has died and there is no surviving renter.
…
91T Order of Tribunal to enter into residential rental agreement
(1) The Tribunal may make an order requiring the residential rental provider to enter into a residential rental agreement with the applicant under section 91S if satisfied that—
(a) the applicant could reasonably be expected to comply with the duties of a renter under a residential rental agreement to which this Act applies; and
(b) the applicant would be likely to suffer severe hardship if the applicant were compelled to leave the premises; and
(c) the hardship suffered by the applicant would be greater than any hardship that the residential rental provider would suffer if the order were made.
…
The argument before the Tribunal focused on whether the unit was Mr Alex’s ‘principal place of residence’. The hearing was conducted informally. Mr Alex was represented. There was, so far as I can ascertain, no sworn evidence. The Tribunal was entitled to conduct the proceeding in that fashion.[3]
[3]The Tribunal is not bound by the rules of evidence and may inform itself on any matter as it sees fit and is obliged to conduct each proceeding with as little formality as a proper consideration of the matters before it permit – see Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 98.
It emerged that Mr Alex had received rent assistance from about June 2022, notwithstanding that a tenant of a unit owned by Homes Victoria is not entitled to rent assistance, and notwithstanding that for much of that time he was not, in fact, paying any rent.[4]
[4]Assuming that the payments to Ms Komba may be treated as ‘rent’ even though they were not called that in the agreement.
After noting that the Residential Tenancies Act 1997 does not provide a definition of ‘principal place of residence’, the Tribunal stated:
[23] I do not consider the premises to fall within the category of the renter’s principal place of residence for the following reasons:
a. The agreement signed by Mr Alex makes it clear that it was a license to occupy, that it was for a short period of time and could be terminated at the sole discretion of the other party. That is, it was of a temporary nature. The parties were unable to tell me how this type of arrangement differed from an AirBnB arrangement.
b. During his occupation of the premises, Mr Alex continued to look for other accommodation and had in fact, submitted an application to [the Director of Housing].
c. Given that he had difficulty accessing the premises without a key or fob to the building demonstrates that he did not have exclusive possession of the premises.
[24] The Tribunal considers the fact that Mr Alex has not changed his address in his driver’s license was because he saw the accommodation as being temporary.
[25] I find that the premises were not the principal place of residence of the applicant. Accordingly, the application is dismissed.
D. An unnecessary excursion
After oral argument had been concluded, I invited the parties to address me on whether the phrase ‘has been residing’[5] in s 91S of the Residential Tenancies Act 1997, set out in para 6 above, when read with the phrase ‘may apply’, indicates that the question of residency should be determined by excluding issues that have arisen subsequently to the development of controversy and any associated application for an order under the Residential Tenancies Act 1997. If that were the case, then it might have been wrong in law for the Tribunal to take into account the difficulties that Mr Alex had accessing the premises after Ms Komba and Homes Victoria wanted him to leave. Both parties filed written submissions in response to my invitation. Mr Alex, referring to Tatana v Director of Housing,[6] accepted that the Tribunal ‘did not err in the sense contemplated by the Court.’ Accordingly, I say nothing more about this possibility.
[5]The present perfect continuous tense.
[6][2016] VSC 73.
E. Did the Tribunal err in law?
E.1 The meaning of ‘principal place of residence’
Mr Alex had to establish that he was ‘residing’ in the unit as his ‘principal place of residence’. The word ‘residing’ and the phrase ‘principal place of residence’ are not defined in the legislation. They should be given their natural meaning. That meaning has been said, based on the Second Edition of the Oxford English Dictionary, to mean ‘to dwell permanently or for a considerable time, to have one’s settled or usual abode, to live in or at a particular place.’[7] Often, there will be no difficulty establishing whether a person is ‘residing’ at their ‘principal place of residence’. Ordinarily, someone resides where they sleep and live.[8] But where the living arrangements are unusual, or where someone is at a temporary location, it can become more complex. Someone is not a resident if they are only paying a ‘short, temporary visit’.[9] There has to be ‘a considerable degree of permanence’[10] or ‘some assumption of permanence, some degree of continuity, some expectation of continuity’.[11] The question has been posed in terms of whether a person is a ‘resident’ or ‘a mere visitor’,[12] or whether there is ‘the intention to treat that place as home; at least for the time being, not necessarily for ever.’[13] It is possible that someone may have no place of residence. It is, ultimately, a matter of fact and degree.[14]
[7]Levene v Inland Revenue Commissioners [1928] AC 217, 222 (Viscount Cave, LC); Fox v Stirk and Bristol Electoral Registration Officer [1970] 2 QB 463, 475 (Lord Denning MR); Derring Lane Pty Ltd v Port Phillip County Council (1999) 104 LGERA 92, 134 (Balmford J).
[8]Commissioner of Taxation v Miller (1946) 73 CLR 93, 97, 100 (Latham CJ).
[9]Fox v Stirk and Bristol Electoral Registration Officer [1970] 2 QB 463, 477 (Widgery LJ) See also 475 (Lord Denning MR).
[10]Ibid 475 (Lord Denning MR).
[11]Ibid 477 (Widgery LJ).
[12]Ibid.
[13]Derring Lane Pty Ltd v Port Phillip County Council (1999) 104 LGERA 92, 134 (Balmford J), quoting with approval from Hafza v Director-General of Social Security (1985) ASSC 92-052 at 90.607.
[14]Commissioner of Taxation v Miller (1946) 73 CLR 93, 97-8 (Latham CJ), 103 (Dixon J); Gauthiez v Minister for Immigration (1994) 53 FCR 512, 519 (Gummow J).
Mr Alex submitted that the Court should be cautious before applying approaches to the word ‘reside’ that were made in cases concerning migration or taxation. Mr Alex relied on the fact that s 91S of the Residential Tenancies Act 1997 was concerned to give rights to persons who had uncertain accommodation and that it applies to persons that have no legal right to reside at a property and who might be trespassing. He submitted that this gives a different context to the word ‘reside’ where used in s 91S of the Residential Tenancies Act 1997 to where it is used in those other situations. He submitted that the word ‘reside’ in s 91S of the Residential Tenancies Act 1997 should be taken to mean, in essence, ‘where someone is living and sleeping’.
Although there is some attraction to this approach, I do not accept that the concept of ‘reside’ or ‘residence’ where used in s 91S or the Residential Tenancies Act 1997 is so limited. It should not be forgotten that although in this case the ‘residential rental provider’ is a public body whose role is to provide public housing, s 91S applies equally to private owners. Creating a situation where a private owner may be forced to enter into a tenancy agreement with someone against their will is potentially a significant encroachment into that owner’s freedom. Seen in this way, the statutory context does not justify a conclusion that the legislature intended to create that possibility if the applicant were not residing in the premises as their principal place of residence as those terms are normally understood. Had the legislature not intended to incorporate the nuances associated with ‘reside’ it could have used a different word. For these reasons, in my view, the words ‘reside’ and ‘residence’ where they appear in s 91S of the Residential Tenancies Act 1997 should be given their ordinary meaning as expanded upon in para 11 above.
E.2 Did the Tribunal have regard to irrelevant considerations?
Paragraph 23(a) of the Tribunal’s reasons, set out in para 9 above, indicates that the Tribunal had regard to the nature of Mr Alex's right to inhabit the unit, the fact that it was ‘of a temporary nature’, and how it compared to an Airbnb arrangement (that is, a short stay arrangement).
Mr Alex submitted that the fact that someone’s inhabitation is ‘temporary’ does not prevent those premises from being a residence. He submitted that the terms of occupation, including any written agreement, and the time for which someone has stayed somewhere, are not matters that may be considered in determining whether premises are a principal place of residence. I disagree. I accept that someone may reside somewhere even if only temporarily, and that the fact that someone is staying somewhere under a licence agreement rather than a tenancy does not mean that the premises cannot be that person’s residence. But that is not the same as saying that those matters are not relevant. In my view they are. Just as the facts that a person might have been staying somewhere for a long time or staying somewhere pursuant to a tenancy agreement are relevant when determining whether, in all the circumstances, the person was ‘residing’ there rather than, say, merely visiting, the fact that someone was staying there other than in those circumstances is also relevant. Mr Alex’s argument fails to appreciate the distinction between a factor being relevant to the question of residency and that factor being determinative of that question.
Paragraph 23(b) of the Tribunal’s reasons, set out in para 9 above, indicates that the Tribunal had regard to the fact that Mr Alex was actively looking for other accommodation. Mr Alex submitted that ‘the phrase ‘principal place of residence’ does not include a temporal element’ and does not ‘ask the Tribunal to consider if living in the property were a permanent or ongoing arrangement’. In this way, it was submitted that the Tribunal had erred by having regard to the limited duration of Mr Alex’s occupation of the unit.
Again, however, the time for which a person intends to stay somewhere is relevant to determining whether the premises should be seen to be their ‘residence’. An intention to say a very short time might indicate, for example, that someone is merely visiting, and an intention to stay for a long time might indicate that someone intends ‘to move’ there or to ‘reside’ at those premises. That is not to say that someone may not reside somewhere for a short time, but the duration of a stay remains a relevant factor. Accordingly, I do not accept that the Tribunal erred in law by having regard to the length of time that Mr Alex had occupied the unit or his future intentions.
Paragraph 23(c) of the Tribunal’s reasons, set out in para 9 above, indicates that the Tribunal had regard to the fact that Mr Alex did not have ‘exclusive possession’ of the premises. There was no dispute that Mr Alex was the only person staying at the unit throughout the relevant time (save for when his children stayed over). There is, of course, no requirement that a person have exclusive possession of a property for it to be classified as their residence; indeed, normally, in a family or share house situation, they won’t have exclusive possession. The Tribunal was presumably referring to the fact that Ms Komba also had the ability to access the unit for much of the relevant period. It follows from the reference to Mr Alex having ‘difficulty accessing the premises without a key or fob to the building’ that the Tribunal was also referring to the fact that, after difficulties had arisen, Mr Alex did not have easy access of the type that a resident typically enjoys. Mr Alex said: ‘they stole the key and they stole the property and everything so it’s hard for me to actually access the house most of the time. I have to wait for someone to come in and go out …’. Although it is not entirely clear, I assume that ‘they’ is a reference to Ms Komba or her associates, rather than to anyone representing Homes Victoria. Be that as it may, it is tolerably clear that this was a problem that arose after Ms Komba had asked Mr Alex to leave and Homes Victoria were trying to retake possession.
As noted in Part D above, Mr Alex accepted that the Tribunal was permitted to have regard to circumstances both before and after the dispute with Mr Alex arose, so long as they were otherwise relevant.
That being so, it cannot be said that the circumstances that Mr Alex faced in accessing the unit were irrelevant to the issue that the Tribunal had to decide. Again, if Mr Alex had easy access, as if he were the named tenant, then that would be relevant because it would tend to support a conclusion that the unit was his residence. It follows that the fact that he did not have this easy access was a relevant consideration for the Tribunal.
For the above reasons, I do not accept that the Tribunal had regard to matters that were legally irrelevant.
E.3 Did the Tribunal err by concluding that certain matters were ‘determinative’ of the question of whether the unit was Mr Alex’s principal place of residence?
One of Mr Alex’s grounds of appeal was that the Tribunal treated certain matters as ‘determinative’ of whether the unit was his principal place residence and by doing so misconstrued the term ‘principal place of residence’. I disagree. In my view, that contention involves a misreading of the Tribunal’s reasons. The Tribunal listed various matters, most of which have been considered in the reasons above, in the process of explaining why it considered that the unit was not his principal place of residence. But the Tribunal did not state that any of those matters were determinative, and there is nothing in the reasons to suggest that it thought that any of those matters were determinative. On the contrary, the reasons suggest that the Tribunal correctly considered these factors as relevant matters to be weighed.
E.4 Was the conclusion reasonably open?
Notwithstanding that I have not found specific error on the part of the Tribunal, I am satisfied that the conclusion it reached was not reasonably open on the material before it. To make a finding that is not reasonably open is an error of law.[15]
[15]See, eg, S v Crimes Compensation Tribunal [1998] 1 VR 83, 89 (Phillips JA).
As noted above, the proceeding was conducted informally. The material before the Tribunal was to the effect that:
(a) Mr Alex left his previous accommodation because he could not afford it and a possession order had been made. He had been in a ‘desperate’ situation and a colleague had introduced him to Ms Komba;
(b) He moved in to the unit on 25 February 2022 and has lived there, without interruption, since that date. Save for his children, he lived there by himself and was the only occupant;
(c) He moved his own furniture into the unit. According to the police email referred to above, it appeared that ‘all property within the house belongs to [Mr Alex] with the exception of (I believe) a couch’ and that the police officer was ‘unable to find any property in the flat belonging to [Ms Komba]’;
(d) He paid money to Ms Komba until 8 July 2022, which was shortly before her tenancy was terminated;
(e) He has three young children who stayed with him at the unit every second weekend and for part of the holidays;
(f) His Centrelink concession card listed the unit as his address; and
(g) He had no other place where he could go.
In my view, even taking into account the various matters relied on by the Tribunal, the only view reasonably open was that Mr Alex met the statutory test of a person who has been residing at the unit as his principal place of residence.
Once it is understood that a person may reside in premises without having a long-term legal entitlement to be there, in my view it follows that Mr Alex did reside at the unit. It was his (temporary) home and he treated it as such. As noted above, he had all his furniture there, he slept and lived there for almost five months, his children visited him there, he wanted to remain there, and he had nowhere else where he could or did stay. Unlike with an Airbnb arrangement, where, typically, someone stays in a place that is not their home for a short period, it could not be said that Mr Alex was merely visiting, or that he was, for the relevant period, itinerant or homeless. To the extent that his ability to come and go as he pleased was compromised following the dispute arising as to his entitlement to remain at the unit, I do not consider that that indicates that he was not a person ‘who has been residing’ at the unit. The proper characterisation of that circumstance, in my view, is that he was, for that time, residing there but with some difficulties of access. Applying the ordinary meaning of the word, in my view the only conclusion open was that Mr Alex was residing at the unit for the five month period. Given that he had no other residence, the unit was therefore his principal, indeed his only, place of residence.
F. Disposition
I propose to grant leave to appeal, allow the appeal, set aside the Order made on 12 January 2023 dismissing proceeding no R2022/25614/01, in lieu thereof declare that Mr Alex met the statutory test in s 91S of the Residential Tenancies Act 1997, and otherwise remit Mr Alex’s application under s 91T of the Residential Tenancies Act 1997 for further hearing.
It is necessary to remit the matter because the Tribunal has not yet made findings on whether Mr Alex meets the criteria set out in s 91T(1)(a) to (c) of the Residential Tenancies Act 1997.[16] Further, even if he does, the Tribunal retains a discretion as to whether or not to make an order under that section.[17]
[16]Set out in para 6 above.
[17]Cosic v Director of Housing (2007) 28 VAR 67, 73 [28], 78-79 [53] (J Forrest J). Probably, although I do not have to decide, that discretion may be exercised by reference to circumstances including whether there are other persons or families that are and have been waiting for housing provided by Homes Victoria who may have a ‘better’ claim to the unit than Mr Alex. Mr Alex accepted, in oral argument, that if the Tribunal formed the view that he was attempting to ‘game the system’, then it could also take that into account.
I will hear the parties on the form of order and on the question of costs.
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