Aquino v SPL Living Pty Ltd

[2022] NSWCATCD 120

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 express or implied and may be oral or in writing, or partly oral and partly in writing.

(3) An agreement may be a residential tenancy agreement for the purposes of this Act even though:

(a) it does not grant a right of exclusive occupation, or

(b) it grants the right to occupy residential premises together with the letting of goods or the provision of services or facilities.

Note. See section 8 for agreements that are not covered by this Act. Section 7 sets out premises not covered by this Act.

Section 3 of the RT Act defines residential premises as follows:

residential premises means any premises or part of premises (including any land occupied with the premises) used or intended to be used as a residence.

10. However, s8(c) of the RT Act says that the Act does not apply to “an agreement under which a person boards or lodges with another person”.

11. The expression “a person who boards or lodges with another person” is not defined in the RT Act, neither are the terms “boarder” or “lodger”. This means that the Tribunal needs to look at the relevant case law. The expression has been considered in several cases in tribunals. In the matter of Pryor v Costa & Maroulis (Tenancy) [2005] NSWCTT 555 [32]- [34] the predecessor to NCAT the CTTT, said:

“32. The term lodger is not defined in the 1987 Act and its meaning is to be derived from case law. While many would be sympathetic to the view of Member Hopkins in Johnson v Lismore Woman’s & Children’s Refuge Inc (RT 00/42507 26 February 2001) that the common law concept of lodgers is outmoded being out of place in contemporary society and in need of legislative review, it is necessary to examine the common law definitions to ascertain if in this case the Applicant was a lodger.

33. In Ellis v City Woman’s Hostel (RTT 97/022789, 15 June 1998) Member Hopkins brought together the decisions to that time to articulate the fundamental elements of what makes an occupier of premises a lodger by stating:

“.. I am of the view that a "lodger" … is a person who has been granted the right, for value, to occupy … premises … for the purpose of their use as a residence, … in circumstances where the owner remains in possession and occupation (either personally or by his servant), and retains the character of master of the house and with the owner exercising control and dominion over the whole.”

By so viewing a lodger, Member Hopkins was following the previous decision of Chairperson Rustin in Walker v Puvesi (RTT 86/6) who stated, after examining the relevant cases spanning over a century, that in order for an occupier to be seen as a lodger, the distinguishing factor is the nature of the owner’s occupation:

… the owner … must remain in possession and retain his quality as master of the house, reserving to himself the general control and dominion over the whole, although he may have agreed to give to the other exclusive enjoyment of the occupation of part.

34. In summary, the occupier must have been granted, in consideration for value, the right to occupy premises, part of which may be exclusive, while the owner still retains, personally or by a servant, power to reprove all occupants who do not submit to the owner’s will with regard to any matter touching upon the premises. The owner must remain the constant, conspicuous and prevailing authority over the premises on all matters.”

12. After those cases were decided, the Boarding Houses Act 2012 (BHA) was introduced. That Act defines boarding premises in s 4 as:

boarding premises means premises (or a complex of premises) that:

(a) are wholly or partly a boarding house, rooming or common lodgings house, hostel or let in lodgings, and

(b) provide boarders or lodgers with a principal place of residence, and

(c) may have shared facilities (such as a communal living room, bathroom, kitchen or laundry) or services that are provided to boarders or lodgers by or on behalf of the proprietor, or both, and

(d) have rooms (some or all of which may have private kitchen and bathroom facilities) that accommodate one or more boarders or lodgers.

13. The BH Act applies to occupancy agreements but occupancy agreements do not include residential tenancy agreements under the RT Act: see s27 of the BH Act.

14. As noted in the matter of Pupuke v Stratford [2016] NSWCATAP 7 at 23:

“However, in our view the provisions of the BH Act do not alter the test set out in Pryor, namely for an occupant to be a boarder or lodger the owner “must remain in possession and retain his quality as master of the house, reserving to himself the general control and dominion over the whole, although he may have agreed to give to the other exclusive enjoyment of the occupation of part”.

15. In the present matter whether there was a residential tenancy agreement turns on the consideration of whether the test set out in s 8(1)(c) of the RT Act applies, that is whether it is “an agreement under which a person boards or lodges with another person…”.

16. In this regard some guidance is provided by the matter of Guider v O’Neil [2019] NSWCAT at [10] to [17]:

[10] I have also been persuaded by the applicant’s submissions that such “other person” is a reference to the grantor of the right to reside at the premises. Indeed I cannot find that any other interpretation in tenable.

[11] I note that Pryor found that the issue to be determined to establish if an occupant is a lodger is whether the landlord retained the power to control all occupants and whether they had a constant, conspicuous and prevailing authority over the premises. That last phrase was referred to in subsequent Tribunal cases, including, as an example only, Bowles v Preston (Tenancy) [2009] NSWCTTT 655.

[12] That phrase was enclosed in the common law legal principle, sometimes referred to in similar matters, that in the case of a boarding house, the owner must retain “mastery and control” over the premises.

[13] In my opinion that principle is of limited assistance in distinguishing between tenant and boarder particularly, as is always the case, where the particular facts put the case close to the borderline between the two concepts.

[14] I am persuaded by the submission of Mr Barker that the one distinguishing consideration is to be found within s 8(1)(c) of the RT Act. That is, in the circumstances where the factual matrix does not make it easy to clearly distinguish between a boarder and a tenant, the RT Act itself provides the answer: if the residential agreement is not one under which a person boards or lodges with another person, then the agreement is not excluded from the definition in s 11 of the RT Act.

[15] If it should be pointed out that this subsection also includes the words “boards or lodges” and that therefore it is still necessary to make a determination whether the agreement is referring to a boarder or lodger, I consider that as neither of those terms is defined we would be left with a circular argument. The circuit is broken by considering whether the residence is “with another person”, whatever else it may be.

[16] It is not in dispute that neither the grantor not any person or agent on behalf of the grantor resides at the subject premises. Indeed, the respondents submit that:

“There is no onsite manager for the property, but Brough & Taylor manage the site on behalf of the respondent from the Real Estate Office located only minutes from the address”.

[17] For those reasons I find that the occupancy agreement is a residential tenancy agreement pursuant to s 11 of the RT Act”.

17. In the present matter the undisputed evidence was that there was in fact no onsite manager or representative of SPL who lived onsite at the premises. For this reason the occupancy agreement cannot be excluded from the RT Act by virtue of s 8(1)(c) as the agreement between the parties is not “an agreement under which a person boards or lodges with another person”.

18. The agreement is also not excluded from the RT Act by the provisions of s 8(1)(bb) or 8(1)(d). That is the premises are not short term accommodation or crisis or refuge accommodation as defined in both of those sections.

19. Further in Sutcliffe v Hennessy [2017] NSWCATCD 77 the Tribunal considered the elements required for the determination of whether there was a residential tenancy agreement. The Tribunal stated at [64] to [67]:

[64] In determining whether or not there is a residential tenancy agreement between the parties, the relevant principles may be summarised as follows:

[65] The intention of the parties must be assessed objectively, from the perspective of a reasonable person in the position of the party. The assessment is made prospectively, not retrospectively, taking into account all the facts and circumstances, including the words and conduct of the parties. The subjective beliefs of the parties are relevant to the extent that it assists in determination of the objective intention of the parties.

[66] For there to be a residential tenancy agreement, the Tribunal must be satisfied that there was an intention to create a legal relationship which objectively assessed is a residential tenancy, rather than an informal or domestic relationship that is not legally enforceable.

[67] The Tribunal must be satisfied that the essential terms of a residential tenancy exist with sufficient certainty. Such essential terms are: (i) the parties to the agreement; (ii) the premises in question; (iii) the duration of the tenancy; (iv) the rent, or mechanism for determining rent; and (v) the date of formation and commencement of the agreement (Anforth, Christensen and Adkins, Residential Tenancies Law and Practice NSW (7th ed, 2017, Federation Press) p 54).

20. The Tribunal considers that the Agreement does constitute a residential tenancy agreement within the meaning of the RT Act and not “an agreement under which a person boards or lodges with another person”. The features of the agreement that lead to this conclusion are set out below.

21. The essential terms of a residential tenancy exist in relation to the agreement between the parties that is the agreement between the parties contains the following:

1. The parties to the agreement are listed.

2. The premises is specified in the agreement.

3. The “move in date” is specified which goes to the issue of the duration of the agreement. In this regard it appears to be a continuing agreement.

4. The amount of rent is specified, although called a “room fee” at $240 per week.

5. The date of the commencement and formation of the agreement are specified.

22. Further on an objective assessment of the agreement the following leads to a conclusion that the agreement was a residential tenancy agreement:

1. There are a number of documents which refer to a “tenancy”, including the document entitled “Tenancy Application, Occupancy and Holistic Agreement” (found at T 13 of the applicant’s documents). This document was signed by the applicant on 11 June 2021 prior to the signing of the “Occupancy Licence Agreement”. The “Tenancy Application, Occupancy and Holistic Agreement” states the following:

“I have read and understand the Tenancy Agreement. I agree to my leasing agreement and understand that this is a legal document and all information provided by me is honest and complete. I understand withholding information required by the lease document is grounds for the Tenancy Agreement to be terminated. I have read and understood the Tenancy Requirements”.

23. Based on this document and on an objective assessment of the intentions of the parties from the perspective of a reasonable person (in the position of the party) it could therefore be seen that the parties intended to enter into a residential tenancy agreement rather than an occupation agreement under the BHA.

24. Further the following appears to indicate that the agreement was in fact a residential tenancy agreement:

1. The landlord issued a termination notice under both the residential tenancies act and a “notice of termination of occupancy” on 29 November 2021. Both notices required vacant possession by 27 February 2022. Both notices appear to be at odds with the “Occupancy Licence Agreement” which states at clause 10(3) “In the event this agreement is terminated by SPL (a) you agree to leave the premises immediately after being served with a termination notice of this agreement by SPL”. Both notices give Ms Aquino 90 days to vacate the premises.

2. It appears that there was an intention to create a legal relationship which objectively assessed is a residential tenancy, rather than an informal or domestic relationship that is not legally enforceable. Ms Aquino was required to sign a number of documents and acknowledge that she had read and understood them which suggest that the parties intended to enter into a legal relationship rather than an informal or domestic relationship.

3. There were 4 people in total living at the premises so it could not be considered to be a boarding house as defined in section 5 of the BHA, that section requires that there be 5 or more residents. It states as follows:

5 Meaning of “registrable boarding house”

(1) For the purposes of this Act, a registrable boarding house means any of the following:

(a) a general boarding house,

(b) an assisted boarding house that is required to be authorised under Part 4 for it to be lawfully used as such under that Part (a regulated assisted boarding house).

(2) Boarding premises are a general boarding house if the premises provide beds, for a fee or reward, for use by 5 or more residents (not counting any residents who are proprietors or managers of the premises or relatives of the proprietors or managers).

25. Ms Aquino was not provided with any meals as part of her agreement, and she had a door with a lock on her room.

26. Therefore, the Tribunal finds that the agreement between the parties was in fact a residential tenancy agreement pursuant to s 11 of the RT Act.

HAS THE LANDLORD BREACHED THE RESIDENTIAL TENANCIES ACT?

27. Having found that the agreement between the parties is in fact a residential tenancy agreement the next thing that the Tribunal needs to determine is whether the landlord has breached the terms of the RT Act with respect to the re-gaining of the possession of the premises. If so, what compensation is the applicant entitled to in relation to that breach.

28. In this regard the applicant contends that the landlord took possession of the residential premises contrary to the provisions of the RT Act.

29. Section 81 of the RT Act sets out the circumstances in which a residential tenancy terminates. A residential tenancy agreement terminates only in the circumstances set out in the RT Act: see section 81(1). That section 81 says as follows:

81 Circumstances of termination of residential tenancies

(1) Termination only as set out in Act A residential tenancy agreement terminates only in the circumstances set out in this Act.

(2) Termination by notice and vacant possession A residential tenancy agreement terminates if a landlord or tenant gives a termination notice in accordance with this Act and the tenant gives vacant possession of the residential premises.

(3) Termination by order of Tribunal A residential tenancy agreement terminates if the Tribunal makes an order terminating the agreement under this Act.

(4) Other legal reasons for termination A residential tenancy agreement terminates if any of the following occurs—

(a) a person having superior title (such as a head landlord) to that of the landlord becomes entitled to possession of the residential premises,

(b) a mortgagee of the residential premises becomes entitled to possession of the premises to the exclusion of the tenant,

(c) a person who succeeds to the title of the landlord becomes entitled to possession of the residential premises to the exclusion of the tenant,

(d) the tenant abandons the residential premises,

(e) the tenant gives up possession of the residential premises with the landlord’s consent, whether or not that consent is subsequently withdrawn,

(f) the interests of the landlord and tenant become vested in the one person (merger),

(g) disclaimer occurs (such as when the tenant’s repudiation of the tenancy is accepted by the landlord).

30. Relevant to the present matter is whether possession of the premises was given in the circumstances contemplated by s 81(2), that is by notice and vacant possession. The applicant had provided the respondent with two notices of termination with a vacant possession date of 27 February 2022. The applicant appears to have given the respondent possession back on 18 February 2022 when she gave the keys back to the respondent via the police who she had called to the premises as the result of a disagreement between the parties on that day. It is not the case that the respondents had locked the applicant out of the premises and excluded her from the premises on 18 February 2022, the applicant had given them back the keys at that time. Further, the applicant had organised her own removalist to attend on that date to remove her belongings.

30. The applicant contended that the respondents had attended the premises on 18 February 2022 in contravention of s 120 of the RT Act. The Tribunal does not accept that submission, it is clear on the evidence that the applicant had asked the respondents to attend the premises on 18 February 2022 so that she could return the keys to them. A disagreement between the parties subsequently ensued in relation to the date and which led to the applicant calling the police and the respondent calling the ambulance due to concerns for the welfare of the applicant. There was no clear evidence from either party about the circumstances in which the keys were handed back, in any event it appears that they were returned to the respondent via the police on that day and that the respondents did not lock Ms Aquino out.

31. Therefore, the Tribunal finds that the possession of the premises was given by way of notice and vacant possession. Being that the respondent had issued a notice of termination and the respondent gave vacant possession by way of handing back of the keys on 18 February 2022. Therefore, the Tribunal cannot find that the respondents were in breach of their obligations under the RT Act, and as a result the applicant is not entitled to any compensation for breach. Accordingly, the application for compensation is dismissed.

uncollected goods

33. The applicant also sought orders under s 31B of the Uncollected Goods Act 1995 (“UCGA”) for either delivery of the uncollected goods or compensation for their disposal.

34. Section 5 of the UCGA provides relevantly that:

“ 5 When goods uncollected for purposes of Act

…………………………………..

(2) Goods are also uncollected goods if—

(c) a landlord reasonably believes the goods have been abandoned or left behind by the tenant or an occupant of the premises after vacant possession of the premises is obtained or the premises are abandoned (within the meaning of the Residential Tenancies Act 2010), or

35. For the purposes of the UCGA, the definitions in s 3 provide that:

depositor means the person who gives possession of goods (whether or not the person is the owner of the goods), and includes a bailor.

receiver means the person who takes possession of goods, and includes a bailee.

Uncollected good means goods that are uncollected as referred to in section 5.

36. Therefore, a tenant will be a depositor of uncollected goods, and a landlord will be a receiver for the purposes of the UCGA where premises are abandoned, or vacant possession given and goods are left behind.

37. The Tribunal cannot be satisfied on the balance of probabilities on the evidence that the goods as claimed by the applicant are in fact uncollected goods. This is because the definition of uncollected goods is that the “landlord reasonably believes the goods have been abandoned or left behind by the tenant ….”. In the present matter the landlord’s evidence was that they did not believe that there were any items that were left behind by the applicant when she vacated the premises. Further, the evidence was that the police had escorted the applicant through the premises to check that she had collected all of her items before she left.

38. In those circumstances the Tribunal cannot find that there were any abandoned goods at the premises and therefore this portion of the application is also dismissed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Amendments

05 October 2023 - Formatting amendments.

Decision last updated: 05 October 2023