Aquino v SPL Living Pty Ltd

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Aquino v SPL Living Pty Ltd [2022] NSWCATCD 120

Hearing dates:

14 July 2022

Date of orders:

31 August 2022

Decision date:

31 August 2022

Jurisdiction:

Consumer and Commercial Division

Before:

J Searson, General Member

Decision:

1. Pursuant to s 11 of the Residential Tenancies Act2010 the Tribunal declares that the agreement between the parties in respect of Room 1 / 6a Waterford Close Ashtonfield NSW 2323 is a residential tenancy agreement.

2. The application is otherwise dismissed.

Catchwords:

RESIDENTIAL TENANCIES – whether premises are a boarding house – whether occupancy agreement is a residential tenancy agreement, uncollected goods.

Legislation Cited:

Boarding Houses Act 2012

Residential Tenancies Act 1987

Residential Tenancies Act 2010

Uncollected Goods Act 1995

Cases Cited:

Bowles v Preston (Tenancy) [2009] NSWCTTT 655

Ellis v City Woman’s Hostel (RTT 97/022789, 15 June 1998)

Guider v O’Neil [2019] NSWCAT

Pryor v Costa & Maroulis (Tenancy) [2005] NSWCTT 555

Pupuke v Stratford [2016] NSWCATAP 7

Sutcliffe v Hennessy [2017] NSWCATCD 77

Walker v Puvesi (RTT 86/6)

Texts Cited:

Anforth, Christensen and Adkins, Residential Tenancies Law and Practice NSW (7th ed, 2017, Federation Press)

Category:

Principal judgment

Parties:

Diosa Pingy Aquino (Applicant)
SPL Living Pty Ltd (First Respondent)
Sanctuary Place Pty Ltd (Second Respondent)

Representation:

Solicitors:
John Mackenzie (Applicant)
Jacqui Whiteford (First and Second Respondents)

File Number(s):

RT22/09453, GEN22/09457

Publication restriction:

Nil

REASONS FOR DECISION

1. The applicant in this matter seeks a number of orders including seeking compensation under s 187 of the Residential Tenancies Act 2010 and also orders under the Uncollected Goods Act 1995.

2. The respondent opposed the orders as sought by the applicant.

background

3. The applicant in this matter filed two applications with the Tribunal. Firstly, in matter RT 22/09453 the applicant sought compensation due to an alleged breach of the Residential Tenancies Act 2010 by the respondent.

4. The applicant’s second application matter GEN 22/09457 sought orders for compensation under the Uncollected Goods Act 1995.

5. Both applications were opposed by the respondent(s).

6. As these matters relied substantially on the same facts they were heard together by telephone on 14 July 2022.

7. This decision relates to both matter number RT 22/09453 and GEN 22/09457.

jurisdiction

8. The first issue for the Tribunal to determine is whether this is a matter where the Residential Tenancies Act 2010 (“RT Act”) applies or the Boarding Houses Act 2012 (“BHA”). That is whether the applicant is a tenant or a boarder, and whether the agreement is a Residential Tenancy Agreement or an Occupancy / Licence Agreement.

RESIDENTIAL TENANCY AGREEMENT OR OCCUPANCY AGREEMENT?

9. Section 13 of the RT Act says that a residential tenancy agreement is as follows:

13 Agreements that are residential tenancy agreements

(1) A residential tenancy agreement is an agreement under which a person grants to another person for value a right of occupation of residential premises for the purpose of use as a residence.

(2) A residential tenancy agreement may be…