Aston & Vallis v Australian National University (Civil Disputes) - [2023] ACAT 74

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

ASTON & VALLIS v AUSTRALIAN NATIONAL UNIVERSITY (Civil Disputes) [2023] ACAT 74

XD 1099/2021
XD 18/2022

Catchwords: CIVIL DISPUTES – applications for compensation arising from alleged frustration of Australian National University residential accommodation occupancy agreements – consideration of the doctrine of frustration – whether occupancy agreements were frustrated consequent on COVID-19 public health orders and travel restrictions – whether occupancy agreements frustrated by border closure – no temporary frustration – occupancy agreements capable of performance – occupancy agreements not frustrated – applications dismissed

Legislation cited: Greater Sydney Commission Act 2015

Subordinate

Legislation cited: Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Declaration 2020 NI2020-153
Public Health (COVID-19 Interstate Hotspots) Emergency Direction 2020 (No.1)
Public Health (COVID-19 Interstate Hotspots) Emergency Direction 2020 (No.6)
Public Health (COVID-19 Interstate Hotspots) Emergency Direction 2020 (No.7)
Public Health (COVID-19 Interstate Hotspots) Emergency Direction 2020 (No.8)
Public Health (COVID-19 Interstate Hotspots) Emergency Direction 2020 (No.9)
Public Health (COVID-19 Northern Beaches) Order 2020
Public Health (COVID-19 Affected Areas) Emergency Direction 2021 (No.7)
Public Health (COVID-19 Affected Areas) Emergency Direction 2021 (No.8)
Public Health (COVID-19 Affected Areas) Emergency Direction 2021 (No.9)
Public Health (COVID-19 Areas of Concern) Notice 2021 (No 21) to (No 194)
Public Health (COVID-19 Greater Sydney) Order 2021
Public Health (COVID-19 Greater Sydney) Order (No.2) 2021
Public Health (COVID-19 Greater Sydney) Order No.2) 2021 amended by Public Health (COVID-19 Greater Sydney) Order (No 2) Amendment Order 2021 dated 25 June 2021 and Public Health (COVID-19 Greater Sydney) Order (No 2) Amendment Order (No 2) 2021 dated 26 June 2021
Public Health (COVID-19 Affected Areas) Emergency Direction 2021 (No.10)

Cases cited:Bank of New York Mellon (International) Ltd v Cine-UK Ltd [1981] AC 675
Beresford v AJ Mackenzie Pty Ltd [2021] VCAT 236
Brisbane City Council v Group Projects Pty Ltd [1979] HCA 54
Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24
Davis Contractors Ltd v Fareham Urban District Council [1956] AC 696
Edwinton Commercial Corporation v Tsavliris Russ (Worldwide Salvage and Towage) Ltd (The “Sea Angel”) [2007] EWCA Civ 547
Foster & Sieker v Theodor [2021] VCAT 1025
Gem Ezy Flights Pty Ltd v Gribble [2021] NSWCATAP 76
Maritime National Fish Ltd v Ocean Trawlers Ltd [1935] AC 524
National Carriers Ltd v Panalpina (Northern) Ltd [1981] AC 675
oOh! Media Roadside Pty Ltd (Formally Our Panels Pty Ltd) v Diamond Wheels Pty Ltd [2011] VSCA 116
Roberts v Toor Bros (Aust) Pty Ltd [2022] SADC 77
Scanlan’s New Neon Ltd v Tooheys Ltd [1943] HCA 43; (1943) 67 CLR 169
Snowtime Tours Pty Ltd v Lavecky [2022] NSWCATAP 219

List of

Texts/Papers cited: D.W. Grieg and Davis, The Law of Contract, (Law Book Company, 1987)

Tribunal:Presidential Member G McCarthy
Senior Member K Katavic

Date of Orders:  28 November 2023
Date of Reasons for Decision:      28 November 2023
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          XD 1099/2021

BETWEEN:

SIGOURNEY VALLIS
Applicant

AND:

AUSTRALIAN NATIONAL UNIVERSITY
Respondent

TRIBUNAL:Presidential Member G McCarthy
Senior Member K Katavic

DATE:28 November 2023

ORDER

The Tribunal orders:

The application is dismissed.

………………………………
Presidential Member G McCarthy
For and on behalf of the Tribunal

AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 18/2022

BETWEEN:

KATE ASTON
Applicant

AND:

AUSTRALIAN NATIONAL UNIVERSITY
Respondent

TRIBUNAL:Presidential Member G McCarthy
Senior Member K Katavic

DATE:28 November 2023

ORDER

The Tribunal orders:

The application is dismissed.

………………………………
Presidential Member G McCarthy
For and on behalf of the Tribunal

REASONS FOR DECISION

Introduction

It is difficult to find a part of the world that was not affected by the pandemic occasioned by the novel coronavirus SARS-Cov-2 (COVID-19) in 2020 and 2021. The Australian National University (ANU) is no exception.
By March 2020, Commonwealth, State and Territory governments in Australia had implemented a range of measures and restrictions in response to the emerging pandemic (Public Health Orders).
From this time, terms such as “lockdown”, “border closure”, “hotspot”, “isolation” and “quarantine” were commonly used in the context of the pandemic.
By separate applications, two students at the ANU, Kate Aston and Sigourney Vallis (the Applicants), brought proceedings against the ANU (the Respondent)[1] in relation to their on-campus accommodation, governed by occupancy agreements (the Occupancy Agreements) for the period 3 February 2021 to 15 December 2021 (the Occupancy Period), for which the Applicants paid a fee (the Occupancy Fee). Each Occupancy Agreement signed by each Applicant is in materially the same terms for the same Occupancy Period.
[1] In these reasons for decision, a reference to the ‘Respondent’ is a reference to the ANU in its capacity as the respondent to these proceedings and a reference to the ‘ANU’ is a reference to the campus.
The Applicants’ accommodation was at Burton & Garran Hall (B&G), which is a residential college on the ANU campus. Students shared kitchen, dining, and laundry facilities. B&G was operated by the Respondent throughout the Occupancy Period.
During the Occupancy Period, both students experienced the effects of border closures and lockdowns in NSW and the ACT. Midway through the term of the Occupancy Agreements, the Applicants left the ACT at different times and travelled into NSW after which, they say, they could not return.
Notwithstanding the Applicants’ claims, the Respondent enforced the terms of the Occupancy Agreements for the duration of the Occupancy Period by requiring the Applicants to pay the Occupancy Fee payable under the Agreements.
These proceedings arise from the Applicants’ claim that the Occupancy Agreements were legally frustrated from the date they say they were unable to return to the ACT and then to their rooms at B&G. The Applicants seek repayment of the portion of the Occupancy Fee they paid the Respondent referenced to the date from which they say they were unable to return to the ACT. They claim the repayment is payable on grounds the Occupancy Agreements were frustrated and discharged from that date.

The applications before the Tribunal and evidence

The proceedings commenced by way of Civil Dispute Applications both dated 28 April 2022. Orders were made for them to be heard together.
The Applicants’ claim was refined by a “Further Amended Statement of Claim” dated 23 August 2022 filed by each of them, respectively. The claim was confined to two causes of action, frustration of the Occupancy Agreements and, in the alternative, repudiation of the Occupancy Agreements by the Respondent. In the course of the hearing, the Applicants abandoned the claim of repudiation.[2]
[2] Transcript of proceedings dated 11 November 2022, page 288, lines 25-32
The Respondent relied upon its “Response to Applicant’s Further Amended Statements of Claim filed in each application dated 16 September 2022.
The Applicants relied upon the following witness statements:
(a)Witness Statement of Kate Aston dated 27 May 2022;[3]
(b)Witness Statement of Sigourney Vallis dated 27 May 2022;[4]
(c)Witness Statement of Georgie Forrest dated 27 May 2022;[5]
(d)Witness Statement of Maya Konakci dated 26 May 2022;[6] and
(e)Witness Statement of Nina Rewitzer dated 26 May 2022.[7]
[3] Exhibit A5 – ‘Witness statement of Kate Elizabeth Aston’ dated 27 May 2022, including annexures KA1 to KA33
[4] Exhibit A4 – ‘Witness statement of Sigourney Vallis’ dated 27 May 2022, excluding paragraph 55 and including annexures SV1 to SV34
[5] Exhibit A3 – ‘Witness statement of Georgie Forrest’ dated 27 May 2022
[6] Exhibit A1 – ‘Witness statement of Mary Konakci dated 26 May 2022
[7] Exhibit A2 – ‘Witness statement of Nina Rewitzer’ dated 26 May 2022
The Applicants also relied upon other documents that included:
(a)email dated 23 December 2020 sent at 2:18pm from Mr Mosley to Ms Vallis; email dated 23 December 2020 at 2:35pm sent by Di Riddell to Ms Vallis; and email dated 24 December 2020 sent at 10:37am from Di Riddell to Ms Vallis regarding confirmation of payment received.[8]
(b)Document SV37 – ‘Webpage creation for Students in COVID-19 affected areas in Australia’ dated 16 August 2021, located on pages 105 to 109 of all the Applicants’ bundle of evidence dated 22 May 2022;[9]
(c)Document SV38 – ‘ANU FOI disclosure 202100087’ dated 10 March 2022, located on pages 110 to 126 of the Applicants’ bundle of evidence dated 22 May 2022;[10]
(d)Document SV39 – ‘Transcript of forum hosted by ANU’ dated 27 July 2021, located on pages 127 to 148 of the Applicants’ bundle of evidence dated 22 May 2022;[11]
(e)Bundle of documents “Index to Occupancy Agreement and Handbook 2019-2022”.[12]
[8] Exhibit A6 – Various email correspondence sent to Ms Vallis dated 23-24 December 2022
[9] Exhibit A7 – Document SV37 to Applicants’ bundle of evidence dated 22 May 2022– ‘Webpage creation for Students in COVID-19 affected areas in Australia’ dated 16 August 2021
[10] Exhibit A8 – Document SV38 to Applicants’ bundle of evidence dated 22 May 2022 – ‘ANU FOI disclosure 202100087’dated 10 March 2022
[11] Exhibit A9 – Document SV39 to Applicants’ bundle of evidence dated 22 May 2022 – ‘Transcript of forum hosted by ANU’ dated 27 July 2021
[12] Exhibit A10 – ‘Index to occupancy agreement and handbook bundle 2019-2022’ filed 27 May 2022
The Respondent relied upon the following witness statements:
(a)Witness Statement of Scott Walker dated 1 July 2022;[13] and
(b)Witness Statement of Professor Tracy Smart dated 1 July 2022.[14]
[13] Exhibit R3 – ‘Witness statement of Scott Walker’ dated 1 July 2022, including annexures A to H with corrections and additions.
[14] Exhibit R4 – ‘Witness statement of Professor Tracy Smart’ dated 1 July 2022, including annexures A to F
The Respondent also relied upon other documents that included:
(a)Email from “Emily – bgpastoral” dated 16 June 2021;[15]
(b)Screenshot of email from “bgpastoral” to Ms Vallis dated 16 June 2021.[16]
[15] Exhibit R1 – Email correspondence between ‘Emily – bgpastoral’ (email address redacted) dated 16 June 2021, see transcript of proceedings dated 9 November 2023, page 83, lines 25-29, where the date is corrected and clarified
[16] Exhibit R2 – Screenshot of email correspondence (email address redacted) dated 16 June 2021
The Respondent relied upon many Public Health Orders made by the NSW and ACT Governments. The more relevant ones are referred to below.
We have considered all the material and submissions relied upon by the parties in these proceedings in our preparation of these reasons.

Public Health Orders

On 11 March 2020, the World Health Organisation declared COVID-19 a pandemic. On 16 March 2020, the Commonwealth Minister for Health declared a public health emergency in relation to COVID-19 (the Declaration).[17] By 31 March 2020, significant travel restrictions had been put in place Australia-wide and the country was effectively ‘in lockdown’. Australia’s international borders were closed, save for some exemptions, and anyone entering the country was required to undertake 14 days of quarantine.[18]
[17] Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Declaration 2020
[18] For example, this was usually required to be in a hotel
From May 2020, there was a progressive easing of restrictions with lockdown lifted and most interstate borders reopened. However, throughout 2020, restrictions on movement and gatherings, and efforts to limit the spread of the virus such as quarantine and isolation, were structural features of life, particularly in metropolitan areas.
At various times after the Declaration, health officers and government ministers in all Australian States and Territories made orders in response to COVID-19 which restricted activity and movement. For the purposes of these proceedings, the Tribunal regarded the relevant orders, directions, or declarations relevantly made in NSW and the ACT, set out below, as Public Health Orders despite their varying formal legal titles.[19]
[19] References in these reasons to ‘Hotspot Orders’ and ‘Affected Areas Orders’ are references to ‘Public Health Orders’
During 2020, the ACT Chief Health Officer made emergency directions regarding ‘COVID-19 Interstate Hotspots’ (Hotspot Orders) requiring a person entering the ACT from a declared COVID-19 Hotspot to quarantine. Declared COVID-19 Hotspots included areas in Victoria[20] and NSW. Similar kinds of orders were made in NSW.
[20] Public Health (COVID-19 Interstate Hotspots) Emergency Direction 2020 (NI2020‑387) dated 2 July 2020
On 18 December 2020, the ACT Chief Health Officer made a Hotspot Order in relation to the Northern Beaches local government area, Sydney.[21]
[21] Public Health (COVID-19 Interstate Hotspots) Emergency Direction 2020 (No.6) (NI2020‑812) dated 18 December 2020; Public Health (COVID-19 Interstate Hotspots) Emergency Direction 2020 (No.7) (NI2020-819) dated 18 December 2020
On 19 December 2020, the NSW Government made a Public Health Order in relation to the Northern Beaches local government area in Sydney which, amongst other things, constituted a lockdown. It meant a person could not leave that area or enter that area without a reasonable excuse.[22]
[22] Public Health (COVID-19 Northern Beaches) Order 2020 (NSW) (n2020-4855) dated 19 December 2020
On 20 and 21 December 2020, the ACT Chief Health Officer made Hotspot Orders in relation to multiple local government areas (LGAs) in the greater Sydney area.[23]
[23] Public Health (COVID-19 Interstate Hotspots) Emergency Direction 2020 (No.8) (NI2020-820) dated 20 December 2020; Public Health (COVID-19 Interstate Hotspots) Emergency Direction 2020 (No.9) (NI2020-834) dated 21 December 2020
In 2021, the Declaration was still in effect and the ACT Chief Health Officer made various emergency directions regarding ‘COVID-19 Affected Areas’ (Affected Areas Orders).[24] These Affected Areas Orders contained a series of defined terms and requirements, some of which evolved over time.
(a)‘Resident of the Australian Capital Territory’ was defined to mean a person whose principal place of residence or home that the person primarily occupies on an ongoing and permanent basis is in the Australian Capital Territory.[25]
(b)‘Affected person’ included a close contact or a person who had been in a COVID-19 affected area at a relevant time (with some exceptions);
(c)‘COVID-19 Place of Concern’ referred to an area or place referred to as a COVID-19 Place of Concern identified in a COVID-19 Areas of Concern Notice issued by the ACT Chief Health Officer; and
(d)‘Affected area subject to a stay-at-home requirement’ referred to an area or place identified in a COVID-19 Areas of Concern Notice issued by the ACT Chief Health Officer; and
(e)‘COVID-19 affected area’ was an area or place identified in a COVID-19 Areas of Concern Notice issued by the ACT Chief Health Officer.
[24] Similar kinds of Public Health Orders were also made in NSW during 2021
[25] This definition remained the same in each Affected Areas Order
Many COVID-19 Areas of Concern Notices were issued by the ACT Chief Health Officer in 2021. For the purposes of these reasons, we have referred only to those applicable to the Affected Areas Orders referred to below.
Between 5:00pm on 25 April 2021 and 11:58pm on 9 July 2021, pursuant to Affected Areas Order No.7 (AAO7),[26] Affected Areas Order No.8 (AAO8),[27] and Affected Areas Order No.9 (AAO9)[28]:
(a)an ACT resident who had been in a COVID-19 Affected Area or an ‘affected area subject to a stay-at-home requirement’, was required to complete a self-declaration form and either quarantine in designated premises or stay-at-home for 14 days on returning to the ACT;
(b)a person who was not an ACT resident was not permitted to enter the ACT from a COVID-19 Affected Area or an ‘affected area subject to a stay-at-home requirement’ unless they had obtained an exemption prior to arrival. If granted an exemption, the person was required to quarantine for 14 days in ‘designated premises’, being suitable quarantine accommodation;
(c)a person who had been in a COVID-19 Place of Concern but was not an affected person needed to abide by any conditions or guidance stated in a COVID-19 Areas of Concern Notice applicable to that place of concern.
[26] Public Health (COVID-19 Affected Areas) Emergency Direction 2021 (No.7) (NI2021-244) commenced at 5:00pm 25 April 2021 and ended at 11:58pm on 4 June 2021
[27] Public Health (COVID-19 Affected Areas) Emergency Direction 2021 (No.8) (NI2021‑340) commenced at 11:59pm on 4 June 2021 and ended at 5:59pm on 11 June 2021
[28] Public Health (COVID-19 Affected Areas) Emergency Direction 2021 (No.9) (NI2021‑355) commenced at 6:00pm on 11 June 2021 and ended at 11:58pm on 9 July 2021
Between 5:00pm on 25 April 2021 and 11:58pm on 9 July 2021, pursuant to AAO7, AAO8 and AAO9, the Affected Areas Orders contained guidance for exemptions for non-ACT residents. The significant features of the exemption guidance were:
(a)an application for an exemption to enter the ACT needed to be made not more than two weeks in advance of the proposed travel and not less than 72 hours before travel;
(b)a person was required to obtain an exemption to leave a State or Territory before applying for an exemption to enter the ACT;
(c)exemptions would only be granted in ‘highly exceptional circumstances’; and
(d)only certain exceptional circumstances would be considered, namely:
(i)      the person would be providing a nominated essential service in the ACT;
(ii)     compassionate grounds;
(iii)   attending a funeral for an immediate family member;
(iv)   attending a medical appointment;
(v)     needing a time-critical service only available in the ACT;
(vi)   child access or critical care arrangements;
(vii)     attending court or legal proceedings; or
(viii)   permanently moving to the ACT.
On 25 April 2021, the ACT Chief Health Officer made AAO7 which had the effect set out at paragraphs 27 and 28 above. COVID-19 Areas of Concern Notices No.21 to No.77 applied to AAO7 but did not list any areas in NSW.[29]
[29] Public Health (COVID-19 Areas of Concern) Notice 2021 (No 21) to Public Health (COVID‑19 Areas of Concern) Notice 2021 (No 77)
On 6 May 2021, the NSW Government made a Public Health Order in relation to the Greater Sydney Area (First Greater Sydney Order).[30] Greater Sydney Area was defined to mean the Greater Sydney Region within the meaning of the Greater Sydney Commission Act 2015 (NSW) and the LGAs of the Central Coast and Wollongong. Amongst other things, this Public Health Order placed restrictions on gatherings and the use of premises. This Public Health Order was in place until 17 May 2021.
[30] Public Health (COVID-19 Greater Sydney) Order 2021 (NSW) (n2021-0923)
On 4 June 2021, the ACT Chief Health Officer made AAO8 which had the effect set out at paragraphs 27 and 28 above. COVID-19 Areas of Concern Notices No.78 to No.91 applied to AAO8 and listed close contact and casual contact locations in NSW.[31]
[31] Public Health (COVID-19 Areas of Concern) Notice 2021 (No 78) to Public Health (COVID-19 Areas of Concern) Notice 2021 (No 91)
On 11 June 2021, the ACT Chief Health Officer made AAO9 which had the effect set out at paragraphs 27 and 28 above. COVID-19 Areas of Concern Notices No.92 to No.124 applied to AAO9.[32]
[32] Public Health (COVID-19 Areas of Concern) Notice 2021 (No 92) to Public Health (COVID-19 Areas of Concern) Notice 2021 (No 124)

As at 4:00pm on 22 June 2021, only close and casual contact locations in NSW were identified in the relevant COVID-19 Areas of Concern Notices.[33]
[33] Public Health (COVID-19 Areas of Concern) Notice 2021 (No 115) dated 22 June 2021; Public Health (COVID-19 Areas of Concern) Notice 2021 (No 116) dated 22 June 2021
On 23 June 2021, the NSW Government made a further Public Health Order in relation to the Greater Sydney Area (Second Greater Sydney Order),[34] which incorporated the areas of Bayside, City of Sydney, Canada Bay, Inner West, Randwick, Waverley, Woollahra and any other declared areas in Greater Sydney, and also incorporated the City of Shellharbour. The effect of the Second Greater Sydney Order was to lock down the Metropolitan Sydney Area, continue restrictions on gatherings and the use of premises and to introduce the requirement to wear face coverings (masks) in indoor areas. Significantly, a person was not permitted to travel from the Metropolitan Sydney Area, without reasonable excuse, to a place in NSW, if their place of residence or usual place of work was in any of several stated LGAs. A person could leave the Metropolitan Sydney Area and travel to a place outside the Metropolitan Sydney Area if the place was their principal place of residence.
[34] Public Health (COVID-19 Greater Sydney) Order (No.2) 2021 (NSW) (n2021-1298)
On 23 June 2021, the ACT Chief Health Officer issued COVID-19 Areas of Concern Notice No.118.[35] As at 4:00pm on 23 June 2021, several Sydney LGAs including Inner West were listed as affected areas subject to stay-at-home orders. Relevantly, any non-ACT resident leaving a LGA listed as an affected area subject to a stay-at-home order between 4:00pm on 23 June 2021 and at least 11:59pm on 30 June 2021 required an exemption to enter the ACT. Several LGAs, including Ku-ring-gai, were listed as areas of concern, meaning any person who had spent time in one of those areas was required to comply with any directions in place in that other jurisdiction, complete a self-declaration form within 24 hours of arrival in the ACT or the commencement of the notice and monitor for COVID-19 symptoms for 14 days.
[35] Public Health (COVID-19 Areas of Concern) Notice 2021 (No 118) dated 23 June 2021
On 25 June 2021, the ACT Chief Health Officer issued COVID-19 Areas of Concern Notice No.123[36] with effect from 4:00pm on 25 June 2021. This listed both the Inner West and Ku-ring-gai LGAs as affected areas subject to a stay-at-home requirement, meaning any non-ACT resident required an exemption before entering the ACT from 4:00pm on 25 June 2021.
[36] Public Health (COVID-19 Areas of Concern) Notice 2021 (No 123) dated 25 June 2021
On 25 and 26 June 2021, the NSW Government amended the Second Greater Sydney Order which, by 26 June 2021, had the effect of locking down the entire Greater Sydney Area (Third Greater Sydney Order).[37] The effect of these amendments was that residents in those named LGAs and later the Greater Sydney Area, could not leave those locations without a reasonable excuse.
[37] Public Health (COVID-19 Greater Sydney) Order (No.2) 2021 amended by Public Health (COVID-19 Greater Sydney) Order (No 2) Amendment Order 2021 (n2021-1346) dated 25 June 2021, and the Public Health (COVID-19 Greater Sydney) Order (No 2) Amendment Order (No 2) 2021 (n2021-1367) dated 25 June 2021
On 9 July 2021, the ACT Chief Health Officer made Affected Areas Order (No.10) (AAO10).[38] It differed from AAO7, AAO8, and AAO9 by requiring any ACT resident returning to the ACT from a COVID-19 Affected Area (including the Greater Sydney Area) after 11:59pm on 9 July 2021 to obtain an exemption from the ACT Chief Health Officer (or authorised person) prior to arrival and to quarantine for 14 days in designated premises. The exemption in this case was defined to:
(a)verify the person’s identity and residency in the ACT;
(b)confirm their quarantine location and its suitability; and
(c)confirm the person had obtained any necessary permission to leave the jurisdiction from which the person was travelling.
[38] Public Health (COVID-19 Affected Areas) Emergency Direction 2021 (No.10) (NI2021-424) commenced at 11:59pm on 9 July 2021
Any non-ACT resident wishing to enter the ACT from the Greater Sydney Area after 11:59pm on 9 July 2021 needed to obtain an exemption and to quarantine for 14 days in approved designated premises.[39] This remained in place until 11:59pm on 31 October 2021.
[39] The criteria for obtaining an exemption were set out in Attachment B of AAO10
On 9 July 2021, the ACT Chief Health Officer also issued COVID-19 Areas of Concern Notice No.155,[40] which applied to AAO10. It listed many NSW LGAs, including Inner West and Ku-ring-gai, as COVID-19 Affected Areas. It had the effect of closing the ACT border with NSW to anyone in the Greater Sydney Area. It was not until 5 August 2021 that other parts of regional NSW were identified in a COVID-19 Areas of Concern Notice as COVID-19 Affected Areas.[41] Subsequent COVID-19 Areas of Concern Notices applied to the entire state of NSW.
[40] Public Health (COVID-19 Areas of Concern) Notice 2021 (No 155) dated 9 July 2021
[41] Public Health (COVID-19 Areas of Concern) Notice 2021 (No 194) dated 5 August 2021
On 12 August 2021, the ACT Chief Health Officer made a Public Health Order which imposed stay-at-home orders on all people in the ACT, meaning the ACT went into lockdown. This remained in place until 14 October 2021.
The State of NSW was no longer a COVID-19 Affected Area from 11:59pm on 31 October 2021, meaning the ACT/NSW border was no longer closed to people in the Greater Sydney Area or most of regional NSW.

The Occupancy Agreements

The standard form occupancy agreement defined some terms in the Occupancy Agreements by using references and links to other documents. For example:
(a)The term ‘Resident Handbook’ was defined to be the document at ‘Commencement Date’ was defined to be “[t]he date the Occupant(s) accepts the terms and conditions contained in the letter of offer via ‘Termination Date’ was defined to be “[t]he date contained in the letter of offer”.
(d)The ‘Full Occupancy Fee (Tariff)’ was defined to be the amount that could be found at
(e)The ‘Room Deposit’ was defined to be “[t]he amount notified to the Occupant in the letter of offer”.
The Occupancy Agreements, which both Applicants say they agreed to and signed, are identical in their terms.[42]
[42] Exhibit A4 at [1]-[2], annexure SV1, annexure SV2; Exhibit A5 at [2]-[3], annexure KA1, annexure KA2
According to the letters of offer and the emails of acceptance:[43]
(a)the Occupancy Agreements commenced on 3 February 2021 and ended on 15 December 2021;
(b)required payment of a refundable room deposit of $1,000, in advance;
(c)required fortnightly payments by direct debit, of $245, two-weeks in advance.
[43] Exhibit A4, annexure SV 2; Exhibit A5, annexure KA2
Relevant clauses in the Occupancy Agreements were:
(a)clause 1(b) c, which required the Applicants to “pay the Occupancy Fee and other sundry fees from the Commencement Date and on every agreed instalment date two weeks in advance”;
(b)clause 2, which provided that the Resident Handbook, the University Hall of Residence Policies, and the Rules and Policies of the ANU “form a part of this occupancy agreement”;
(c)clause 3, which obliged the Respondent to grant the Applicants permission to, among other things, occupy the allocated room, provided the Applicants maintained compliance with their obligations under the Occupancy Agreement;
(d)clause 10, which entitled the Applicants to give four weeks written notice if they wished to permanently vacate their room, in which case clause 12 would apply;
(e)clauses 11(a) and 11(b)(i), which caused the Applicants to be deemed to have breached the Occupancy Agreements if a default event occurred, one of which was the Applicants failing to pay an amount due under the agreement by the due date, and the amount remaining unpaid for seven days;
(f)clause 12(b), by which the Applicants agreed that if they permanently vacated their room prior to the termination date, they would remain liable to pay the Occupancy Fee until the earlier of the termination date or the date the Respondent enters into a replacement occupancy agreement for the room;
(g)clause 16, by which the Applicants acknowledged, among other things, they had read and received a letter of offer, the Resident Handbook and the Schedule of Fees; have entered into the Occupancy Agreements freely and voluntarily; and that no promises, representations, warranties, or undertakings had been given by on behalf of the Respondent in relation to the suitability of the room or the services; and
(h)clause 17, which provided that the Occupancy Agreements constituted the entire agreement between the Applicants and the Respondent “and supersede[d] all previous” occupancy agreements.

Sigourney Vallis

Ms Vallis completed her Year 12 studies in 2019 and accepted an early offer at the ANU for 2020. She deferred her commencement until the 2021 academic year.
After completing Year 12, Ms Vallis said she intended to take a ‘gap year’ and travel overseas. She was in New York City, USA, when the pandemic began. When New York City went into lockdown, she travelled to Berlin, Germany, to stay with family. When the Australian Government announced the international border would be closed, and anyone returning to Australia would be required to undertake 14-days quarantine, Ms Vallis made arrangements to return to Australia before the quarantine requirement came into effect. She left Germany on 15 March 2020 and made it back to Australia without having to quarantine.
Ms Vallis applied for residential on-campus accommodation at B&G. On 23 December 2020, B&G sent her an offer of accommodation which she accepted via the Respondent’s portal. She said that, before doing so, she read the terms of the proposed Occupancy Agreement, everything that was provided to her on the portal and the pre-acceptance information.[44] She said she understood if she decided not to continue her studies at ANU or “got kicked out or couldn’t hack study” and wanted to go back to her parents that there might be consequences in terms of having to continue paying rent for her room at B&G.[45] Ms Vallis’ attention was drawn to clause 12 of the Occupancy Agreement which she was required to acknowledge on the portal before submitting her acceptance of the offer. She said she read the Occupancy Agreement and understood she was required to pay rent until the end of the term of the Occupancy Agreement (i.e. the whole of the Occupancy Period) following which she clicked ‘accept’ and ‘submit’.[46]
[44] Transcript of proceedings dated 9 November 2022, page 35, lines 7-28
[45] Transcript of proceedings dated 9 November 2022, page 23, lines 11-16
[46] Transcript of proceedings dated 9 November 2022, page 36, lines 4-17
Ms Vallis also said she was aware of the COVID-19 lockdown which occurred between March 2020 and May 2020.[47] She said she was also aware of the lockdowns in Victoria in 2020, which closed the border between NSW and Victoria,[48] and the lockdown of the Northern Beaches in Sydney which occurred from about 18 December 2020, both of which were before she received her offer of accommodation.[49]
[47] Transcript of proceedings dated 9 November 2022, page 31, lines 9-29
[48] Transcript of proceedings dated 9 November 2022, page 31, line 43-page 32, line 3
[49] Transcript of proceedings dated 9 November 2022, page 33, line 12-page 34, line 14
Ms Vallis commenced residing at B&G at the start of Semester 1 in 2021.
Just prior to the end of Semester 1, on 31 May 2021, Ms Vallis left the ACT and travelled to Sydney to stay with her family in Ashfield. Ashfield is located in the Inner West of Sydney. She said she intended to remain there until the start of Semester 2 around 26 July 2021.[50]
[50] Exhibit A4 at [4]-[5]; Transcript of proceedings dated 9 November 2022, page 24, lines 24-25
On 6 May 2021, the First Greater Sydney Order came into effect. Ms Vallis said she could not recall whether she was aware of this Public Health Order or not.[51] She also said she could not recall checking the situation regarding COVID-19 restrictions in Sydney before she left the ACT.[52] She accepted that at no point in 2021 did B&G or the Respondent direct or recommend that she return to her family home wherever that may be.[53] She agreed that she “took the risk”[54] that the place to which she was returning to live (meaning her family home in Ashfield) might become an area of concern to ACT Health. She also said she knew that if her area was declared a hotspot “then, yes, there was the potential she might need to quarantine or complete orders”.[55]
[51] Transcript of proceedings dated 9 November 2022, page 39, lines 3-4
[52] Transcript of proceedings dated 9 November 2022, page 39, lines 14-18
[53] Transcript of proceedings dated 9 November 2022, page 39, lines 20-29
[54] Transcript of proceedings dated 9 November 2022, page 41, lines 6-21
[55] Transcript of proceedings dated 9 November 2022, page 41, lines 27-33
Ms Vallis said she checked her emails quite regularly and agreed she would have received an email dated 15 June 2021 from B&G Hall if it was sent to the student body.[56] She acknowledged the email informed students that things could change quickly and encouraged students to check the health websites regularly. Ms Vallis agreed, notwithstanding the email, that she did not do anything at this point about returning to the ACT.[57]
[56] Transcript of proceedings dated 9 November 2022, page 40, lines 29-45; Exhibit R1
[57] Transcript of proceedings dated 9 November 2022, page 41, lines 1-5
On 23 June 2021, the Second Greater Sydney Order came into effect. Ms Vallis was affected by this public health order.
Ms Vallis referred to an email she received on 23 June 2021 from Mr Mosley, Head of Burton and Garran Hall on behalf of B&G (the Mosley Email).[58] She explained she understood the main ‘message’ of this email was telling her to stay where she was and, if she was at B&G, she was not to travel.[59] She accepted that if she was in an area that became a COVID-19 hotspot, entry to the ACT would be subject to quarantine requirements which could not be carried out at B&G. She said she did not do anything in response to the Mosley Email and did not call ACT Health to enquire about her options as she took this as a direction to stay where she was.[60]
[58] Exhibit A4 at [7], annexure SV 4; Exhibit R3, annexure F
[59] Transcript of proceedings dated 9 November 2022, page 47, lines 13-14, lines 31-34
[60] Transcript of proceedings dated 9 November 2022, page 48, lines 36-41
Ms Vallis accepted that as at 23 June 2021 she was not in lockdown but said she was unsure if she was in an affected area.[61] She also accepted that if she was not in an affected area as at 23 June 2021 she was able to return to B&G.[62] She said she was trying to follow the advice of the Respondent and said she “didn’t want any complications”[63] on her return to the ACT so she took the Mosley Email to mean she should stay where she was.
[61] Transcript of proceedings dated 9 November 2022, page 87, lines 30-44
[62] Transcript of proceedings dated 9 November 2022, page 89, lines 33-46
[63] Transcript of proceedings dated 9 November 2022, page 88, line 3-page 90, line 9
On 26 June 2021, the Third Greater Sydney Order came into effect which locked down people in the areas stated in the order, meaning they were not to be away from their principal place of residence except for an acceptable reason.
Ms Vallis said she understood the effect of the NSW public health orders to be that only in exceptional circumstances could she return to the ACT. She understood the travel restrictions to mean (as a general rule) she could not return to the ACT.[64] She told the Tribunal she was not sure, as of 26 June 2021, what ways she could return to the ACT, and agreed she could have contacted ACT Health or looked up the public health order for further information, but did not do so.[65]
[64] Transcript of proceedings dated 9 November 2022, page 51, lines 42-44
[65] Transcript proceedings dated 9 November 2022, page 52, lines 1-16
Ms Vallis was subject to the Greater Sydney lockdown which commenced on 26 June 2021. She said this lockdown was originally set until 9 July 2021, but was extended and lasted until November 2021 which she said she could never have predicted.[66]
[66] Exhibit A4 at [9]
Ms Vallis’ witness statement details various email correspondence she received from various operational parts of the Respondent between 26 June 2021 and 9 July 2021.[67] These emails referred to the Respondent’s intention to make Davey Lodge available for some students to comply with stay-at-home or quarantine orders. Ms Vallis said she followed the instructions in these emails in her endeavour to return to the ACT.
[67] Exhibit A4 at [11]-[19]
On 8 July 2021, Ms Vallis, applied to ACT Health for an exemption to return to the ACT. On 9 July 2021, ACT Health rejected the request on the basis Ms Vallis was not considered a resident of the ACT. ACT Health advised Ms Vallis that the ACT was only granting exemptions to persons who were not a resident of the ACT in exceptional circumstances, and she had not provided a letter from her university residential college to support an exceptional circumstance.[68]
[68] Exhibit A4 at [18], annexure SV 10
On 9 July 2021, AAO10 came into effect.
On 9 July 2021, Ms Vallis made a further application for exemption to enter the ACT, this time attaching a letter from the Respondent by way of proof of her residence at B&G.[69] On 13 July 2021, ACT Health rejected her request for an exemption and advised Ms Vallis that after discussions between ACT Health and the various universities and higher education providers in the ACT, all student applications would be rejected at this time if travelling to the ACT was solely for study purposes. Ms Vallis was told she was welcome to reapply once she received notification from her respective education provider of an approved plan for her return. She was told she was not able to quarantine on campus at this time.[70]
[69] Exhibit A4 at [19]
[70] Exhibit A4 at [25], annexure SV 16
Ms Vallis said that in the meantime she made enquiries with ACT Health about returning to the ACT and also discussed with Ms Aston and Ms Konakci the possibility of using ‘Airbnb’ (Airbnb) accommodation in Canberra to complete quarantine.[71] She said she was informed ACT Health did not consider she was an ACT resident and that her ANU address ‘didn’t count’ and that only quarantine in an approved facility was allowed.[72] She was told that Airbnb accommodation would not be regarded as an approved facility.
[71] Exhibit A4 at [21]
[72] Exhibit A4 at [21], annexure SV 13
At hearing, Ms Vallis was asked about whether she had taken steps to try and quarantine in an approved facility off-campus, to which she said she was not aware there were other approved quarantine facilities, and understood Davey Lodge was her only option.[73] Ms Vallis acknowledged the email from Mr Maclaine, A/g Head of Hall, B&G, dated 15 July 2021[74] which presented two possible pathways for quarantine with a process to follow if off-campus and a process to follow if on‑campus.[75] Ms Vallis could not recall if she made enquiries with ACT Health about acceptable off-campus quarantine other than her enquiry about Airbnb.[76]
[73] Transcript of proceedings dated 9 November 2022, page 66, line 12-page 68, line 44
[74] Exhibit A4 at [27], annexure SV 17
[75] Transcript of proceedings dated 9 November 2022, page 69, lines 3-35
[76] Transcript of proceedings dated 9 November 2022, page 70, line 29-page 71, line 23

After 9 July 2021, Ms Vallis continued to receive email correspondence from the Respondent about the possibility of Davey Lodge being available as a quarantine facility and other updates from ACT Health in relation to students in Australia but located outside of the ACT. [77]
[77] Exhibit A4 at [21]-[31]
Ms Vallis said that from 26 July 2021 she began making enquiries of the Respondent about pausing or ending her Occupancy Agreement.[78] On 1 October 2021, she followed this up,[79] and, on 5 October 2021, was formally advised that being prevented from returning to campus by a Public Health Order was not a reason to terminate her Occupancy Agreement.[80]
[78] Exhibit A4 at [32], annexure SV 21
[79] Exhibit A4 at [46]-[47], annexures SV 28-SV 30
[80] Exhibit A4 at [49], annexure SV 31
On 27 July 2021, Ms Vallis applied to B&G for a bursary.[81] On 14 September 2021, she was advised she would receive a bursary of $550.[82]
[81] Exhibit A4 at [35], annexure SV 22
[82] Exhibit A4 at [44]
With effect from 1 November 2021, Public Health Orders changed and enabled Ms Vallis to return to Canberra, which she did on 8 November 2021. She said she removed all of her belongings out of her accommodation at B&G and vacated her accommodation as her studies for the academic year had concluded.[83] She paid the balance owing on her Occupancy Fee, being the fee for her accommodation until 15 December 2021, being the termination date under her Occupancy Agreement. Ms Vallis paid $9,795 for the period of the Occupancy Agreement.[84]
[83] Exhibit A4 at [50]
[84] Exhibit A4 at [51]
Ms Vallis sought an order she be repaid $4,755,[85] referenced to the period from 9 July 2021 from when she was unable to return to the ACT as a consequence of AAO10 to 15 December 2021.[86]

Kate Aston

[85] Email correspondence received from applicants – ‘Update from parties’ dated 29 November 2022
[86] Email correspondence received from applicants – ‘Update from parties’ dated 29 November 2022

Ms Aston completed Year 12 in 2019 and accepted an offer to study at the ANU in 2020. She deferred her commencement until the 2021 academic year and had a ‘gap year’. During 2020, she remained in Australia.
Like Ms Vallis, Ms Aston applied for residential on-campus accommodation at B&G. On 23 December 2020, B&G offered her a place which she accepted on 24 December 2020 by signing the Occupancy Agreement and accepting its terms using the ‘StarRez’ portal. Ms Aston said she read all of the information provided to her in relation to the proposed Occupancy Agreement, including the college handbook prior to signing the Occupancy Agreement and accepting the offer.[87] She said she did not recall reading anything amongst the documents provided to her about COVID-19.[88]
[87] Transcript of proceedings dated 9 November 2022, page 105, lines 21-44
[88] Transcript of proceedings dated 9 November 2022, page 106, lines 18-24
Ms Aston said she was aware of the various lockdowns that occurred during 2020, including the lockdown which closed the border between NSW and Victoria and the lockdown of the Northern Beaches in Sydney in December 2020.
Ms Aston commenced her occupancy at B&G on 3 February 2021. She resided at B&G throughout Semester 1. She became friends with Ms Vallis.
Ms Aston agreed that on 16 June 2021 she received, but did not specifically recall, an email from ‘Emily’ at B&G telling residents about the emerging COVID-19 outbreak in the eastern suburbs of Sydney and advising students to stay up to date with the situation if leaving for the winter break, as things can change quickly.[89]
[89] Exhibit R1; Transcript of proceedings dated 9 November 2022, page 117, line 6-page 118, line 6
On 22 June 2021, a few days after receiving the email from Emily, Ms Aston left the ACT and travelled to her parents’ home in East Lindfield, NSW. East Lindfield is located in the Upper North Shore of Sydney and in the Ku-ring-gai LGA. Ms Aston agreed she took a risk that she might “get stranded”[90] but assessed the risk to be manageable or low. She also agreed neither the Respondent nor anyone at B&G directed her or suggested to her that she should return home to Sydney.[91]
[90] Transcript of proceedings dated 9 November 2022, page 118, lines 25-26
[91] Transcript of proceedings dated 9 November 2022, page 118, line 41-page 119, line 7
On 23 June 2021, the Second Greater Sydney Order came into effect, but Ms Aston was not affected by it.
On 23 June 2021, Ms Aston received the Mosley Email.[92] She acknowledged that because she had already left the ACT, she may now be at risk of some travel restrictions and an obligation to quarantine if she returned to the ACT.[93]
[92] Exhibit A5 at [7], annexure KA4
[93] Transcript of proceedings dated 9 November 2022, page 120, lines 13-30
Ms Aston accepted that at the time she received the Mosley Email she was not in an affected area and agreed that at this point she could have returned to the ACT.[94] She agreed she did not do anything about returning to the ACT upon receiving the Mosley Email.[95]
[94] Transcript of proceedings dated 9 November 2022, page 121, lines 2-17
[95] Transcript of proceedings dated 9 November 2022, page 122, lines 19-22
On 26 June 2021, the Third Greater Sydney Order came into effect which ‘locked down’ people in the areas stated in the order, meaning they were not to be away from their principal place of residence except for an acceptable reason. Ms Aston was now in an affected area.[96] She said this lockdown was originally set to operate until 9 July 2021, but was extended and did not end until November 2021 which she said she could not have predicted.[97]
[96] Exhibit A5 at [9]; Transcript of proceedings dated 9 November 2022, page 123, lines 1-20
[97] Exhibit A5 at [9]
Ms Aston’s witness statement details various email correspondence she received from various operational parts of the Respondent between 26 June 2021 and 9 July 2021.[98] These emails referred to the Respondent’s hope to make Davey Lodge available for some students to complete stay-at-home or quarantine orders. Ms Aston said she followed the instructions in these emails in relation to her intention to return to the ACT.
[98] Exhibit A5 at [10]-[19]
Ms Aston said she recalled that on 17 June 2021, Davey Lodge had been provided as a quarantine facility for 30 attendees returning from the G7 summit.[99] Ms Aston said she kept up to date with correspondence from the Respondent and B&G by checking her emails and relevant website links about the possibility of her quarantining at Davey Lodge.
[99] Exhibit A5 at [5]
On 9 July 2021, AAO10 came into effect, which effectively closed the border between the ACT and NSW. She told the Tribunal she was aware of the specific terms of AAO10. She understood she did not qualify as an ACT resident and as a non-resident she could only enter the ACT with an exemption granted in highly exceptional circumstances which she considered she could not meet.[100]
[100] Transcript of proceedings dated 9 November 2022, page 109, line 33-page 110, line 5
Ms Aston told the Tribunal that she never made her own inquiries of ACT Health regarding how she might return to the ACT and relied on information from Ms Vallis. Ms Aston never applied for an exemption to enter the ACT. She told the Tribunal she did not do so because she thought it was unlikely an exemption would be granted based on her understanding of the exemption requirements and what Ms Vallis had told her, which was that university addresses were not being accepted as evidence to show that a student was an ACT resident.[101] Ms Aston told the Tribunal she was waiting on further correspondence from the Respondent and B&G with advice, directions and instructions on applying for an exemption which she said she did not receive.[102]
[101] Exhibit A5 at [17]; Transcript of proceedings dated 9 November 2022, page 108, line 34-page 109, line 19
[102] Transcript of proceedings dated 9 November 2022, page 109, lines 21-31
After 9 July 2021, Ms Aston continued to receive email correspondence from various operational components of the Respondent about the possibility of Davey Lodge being available as a quarantine facility and other updates from ACT Health in relation to students in Australia but located outside the ACT. [103]
[103] Exhibit A5 at [18]-[29]
Ms Aston said she explored the possibility of securing short-term rental accommodation through Airbnb with Ms Vallis and Ms Konakci as a place to quarantine, but Ms Vallis advised her this was not acceptable according to information she had obtained from ACT Health.[104] Ms Aston also explored the possibility of entering the ACT via other areas in NSW after completing a mandatory period of quarantine, such as in Young, NSW, where her grandmother lived and the Shoalhaven area which she heard about from Ms Forrest.[105] She did not pursue these options.
[104] Exhibit A5 at [18]
[105] Exhibit A5 at [37]-[41]
On 8 August 2021, Ms Aston raised the possibility of a rent pause with the Respondent.[106] In response to her enquiry, she received an email from B&G stating:
All students were advised before they signed their Occupancy Agreement this year that if they were unable to use their room because of a public health direction, they would continue to be liable for the cost of that room.[107]
[106] Exhibit A5 at [32]
[107] Exhibit A5 at [33], annexure KA19
The email directed Ms Aston to a website. Ms Aston said, however, that she was not given such advice before she signed her Occupancy Agreement and was unable to view the ‘StarRez’ portal to confirm.[108]
[108] Transcript of proceedings dated 9 November 2022, page 107, lines 1-44
By 1 September 2021, Ms Aston began enquiring about how she could terminate her Occupancy Agreement and was advised by Mr Maclaine, the B&G Residential Wellbeing Coordinator, that being prevented from returning to campus because of a public health order was not a reason to terminate the Occupancy Agreement without an obligation to pay the balance owing of the Occupancy Fee unless someone else entered into an occupancy agreement for use of her room.[109]
[109] Exhibit A5 at [44]-[48]
On 10 September 2021, Ms Aston cancelled her fortnightly direct debit for her Occupancy Fee, but after receiving advice that a debt for unpaid occupancy fees would build up, which would result in a negative service indicator being placed on her academic record, she resumed the direct debit in November 2021.[110] By this stage she had accumulated a debt.
[110] Exhibit A5 at [48]-[55]
On 8 November 2021, following changes to applicable Public Health Orders with effect from 1 November 2021, Ms Aston returned to B&G removed all her belongings from her room, vacated her accommodation and returned to Sydney, as her studies for the academic year were concluding.[111]
[111] Exhibit A5 at [61]
Ms Aston paid $9,795 to the respondent referenced to the period of her Occupancy Agreement from its commencement on 3 February 2021 to the termination date, namely 15 December 2021.[112] Ms Aston sought an order that she be repaid $5,305, referenced to the period from 9 July 2021 (from when she was unable to return to the ACT) to 15 December 2021.[113]

Maya Konakci

[112] Exhibit A4 at [51]
[113] Email correspondence received from applicants - ‘Update from parties’ dated 29 November 2022

Ms Konakci was friends with Ms Vallis and Ms Aston and was a resident at B&G in 2021. She provided a witness statement in these proceedings,[114] but was not required for cross-examination.
[114] Exhibit A1
On 11 July 2021, Ms Konakci exchanged messages with Ms Vallis and Ms Aston about them potentially quarantining in an Airbnb accommodation together. She understood from Ms Vallis that ACT Health had told Ms Vallis that accommodation through Airbnb was not an approved quarantine facility, so the idea was not pursued.[115]
[115] Exhibit A1 at [2]
On 20 July 2021, upon enquiring with B&G about a rent pause while she was in Sydney and in lockdown, Ms Konakci said she was advised that “[u]nfortunately, as you have a contract with the university you still have to continue [to] pay your accommodation fee regardless of the current Covid-19 situation”.[116]
[116] Exhibit A1 at [3]
Ms Konakci said that on 21 July 2021 she was advised by B&G that ACT Health had deemed Davey Lodge as not appropriate for completing stay-at-home orders, and students were asked to remain where they were or arrange their own quarantine accommodation if ACT Health permitted it.[117]
[117] Exhibit A1 at [4]
On 9 August 2021, Ms Konakci informed B&G that ACT Health had denied her exemption request to return to the ACT, and inquired about a rent refund or pause to which she was told “[a]ll students were advised … that if they were unable to use their room because of a public health direction they would continue to be liable for the cost of that room”.[118]
[118] Exhibit A1 at [5]
On 11 August 2021, Ms Konakci had a further discussion with Ms Vallis and Ms Aston about staying with Ms Aston’s grandmother in Young, NSW, following a discussion she understood Ms Aston had with Ms Forrest, who had quarantined in the Shoalhaven area, but this idea was not pursued.[119]

Georgie Forrest

[119] Exhibit A1 at [6]; Exhibit A4, annexure SV13

Ms Forrest provided a witness statement in these proceedings,[120] but was not required for cross-examination. Ms Forrest was a student at ANU and in 2021 she similarly entered into an occupancy agreement for accommodation at B&G from 3 February 2021 to 15 December 2021. She set out her experience between June and August 2021 in relation to her studies and accommodation.
[120] Exhibit A3
On 10 June 2021, Ms Forrest left the ACT and returned to her family home in Balgowlah Heights, NSW. She was subject to the travel restrictions imposed on the Greater Sydney Area on 26 June 2021.[121]
[121] Exhibit A3 at [2]
She said she made various enquiries about how to return to the ACT for Semester 2 and on 2 July 2021, together with three friends, she travelled to a private dwelling at North Durras, NSW, to quarantine.[122] While there, the group were visited by police officers and monitored.[123] North Durras is in the Shoalhaven LGA.
[122] Exhibit A3 at [3]-[6]
[123] Exhibit A3 at [6]
On 6 August 2021, the group became aware that the ACT had closed its border to the Shoalhaven region which affected their anticipated return to the ACT.[124] She said ACT Health denied exemption requests made by the group seeking to return to the ACT on the basis they were in an Affected Area and did not meet the criteria for an exemption.[125]
[124] Exhibit A3 at [7]
[125] Exhibit A3 at [9]
While completing quarantine at North Durras, the ACT closed its border to NSW. Ms Forrest therefore decided to return to her parents’ home in Sydney.[126] She remained there until 25 November 2021, following changes to applicable public health orders on 31 October 2021 which permitted her to do so. On her return to B&G, Ms Forrest collected her belongings from her room, vacated her accommodation and again left. Ms Forrest paid for her accommodation for the duration of time she was away from B&G, commencing 10 June 2021, until the terminate date specified in her Occupancy Agreement, being 15 December 2021.
[126] Exhibit A3 at [10]-[12]
Ms Forrest said that on 10 August 2021 she had a telephone conversation with Ms Aston about ACT Health not permitting entry from the Shoalhaven area despite her location being only 200m within that LGA unless the exemption criteria were met, but ACT Health still did not allow people to return for the purposes of returning to university.[127]

Nina Rewitzer

[127] Exhibit A3 at [16]

Ms Rewitzer provided a witness statement in these proceedings,[128] but was not required for cross-examination. Ms Rewitzer was a student at ANU and a resident at B&G in 2020. She was a resident at B&G when the first lockdown occurred on 23 March 2020.
[128] Exhibit A2
In her witness statement Ms Rewitzer states she experienced an academic pause between 23 and 27 March 2020 and was advised that if there was a possibility of returning home she should go as soon as possible. She returned home to Sydney. Her rent was covered by her parents for about a month after she left B&G in 2020.[129]
[129] Exhibit A2 at [3]
Ms Rewitzer states she became aware through word of mouth that rent paid after commencement of the academic pause would be reimbursed. Her rent refund was received before June 2020.[130]
[130] Exhibit A2 at [4]
Ms Rewitzer said she understood some international students could not leave B&G and remained there as residents. Students such as herself who chose to leave had their occupancy agreements terminated.[131]
[131] Exhibit A2 at [5]
Ms Rewitzer returned to B&G on a new occupancy agreement for Semester 2, 2020 for a six-month period. After her return, she received an email from B&G Admissions outlining answers to “Frequently Asked Questions”.[132] In her witness statement, she drew attention to answer 14 of that document, which stated, among other things:
A resident always has the option to cancel their Occupancy Agreement, but it is unlikely you will be able to do this with the same financial leniency that the ANU provided in semester one.[133]
[132] Exhibit A2 at [10
[133] Exhibit A2, attachment A, page 5
Ms Rewitzer said that in about July 2021 she told Ms Vallis about her experience in Semester 1 2020 regarding the termination of her agreement and her receiving a refund.[134]

Scott Walker

[134] Exhibit A2 at [11]

From December 2017 to January 2022, Mr Walker was the Deputy Director of Residential Experience. Since April 2022, he has been the Head of B&G.
Mr Walker explained the process by which students entered into occupancy agreements with the Respondent for accommodation in 2021 at one of the Respondent’s residential halls, of which B&G was one.
Mr Walker explained that students entered into occupancy agreements online through the Respondent’s portal. The process commenced with a student registering their interest in an offer of accommodation, through the portal. If a student met the eligibility criteria, and the Respondent decided to offer a student a room at a residential hall, the Respondent sent the student an email containing an offer. The email contained a link to the portal where the student could access a copy of the standard occupancy agreement for the relevant academic year. Other related documents, in particular the Residential Handbook, could also be reviewed through the portal.
Mr Walker explained that if a student wished to accept the offer they needed to ‘tick a box’ online to indicate they agreed to the terms and conditions in the occupancy agreement, following which they received an email confirming their acceptance of the offer. By this means, the Respondent and the student, in each case, entered into an occupancy agreement, the terms and conditions of which were per the standard occupancy agreement available to be viewed through the Respondent’s portal.
Mr Walker agreed the occupancy agreement was a “take it or leave it” offer and that students were not able to negotiate the terms of the agreement.[135]
[135] Transcript of proceedings dated 10 November 2022, page 204, lines 38-45
Mr Walker acknowledged the 2021 occupancy agreement varied from the 2020 version by causing the Resident Handbook to “form a part” of the occupancy agreement. Under the 2020 version, clause 3(l) required students “to be aware of and comply with the rules and regulations in accordance with the Resident Handbook”.[136] He agreed too that the 2021 version of the Handbook contained an amendment from the 2020 version to include COVID-19 as one of the communicable diseases that empowered ANU to exclude someone from residential halls during an infectious period.[137]
[136] See exhibit A10; Transcript of proceedings dated 10 November 2022, page 210, line 44‑page 211, line 6
[137] Transcript of proceedings dated 10 November 2022, pages 211, lines 34-46
Mr Walker contended the Respondent could not terminate a student’s occupancy agreement early, other than in specified circumstances caused by the student or for which the student was held responsible under the agreement. Those circumstances were misbehaviour and/or misconduct on the part of the student, the student’s guest or an overnight visitor (clauses 4.2, 4.3 and 8(f)); the student’s course of study at the ANU being terminated, suspended or completed (clause 9(b)(i)); the student’s academic workload being reduced below 18 units in any one semester, except where approved by the ANU Registrar (clause 9(b)(i)); or the student committing an act of default as set out in clause 11(b).

Implicit in the Applicants’ case is that ‘frustration’ was occurring only whilst the border was closed or government travel restrictions otherwise prevented them from returning, but no one knew for how long that circumstance would exist. Had, the travel restriction changed within say a week or two weeks from when the Applicants were unable to return to B&G in a way that enabled them to return, then it could not have been sensibly suggested the Occupancy Agreements were frustrated from 9 July 2021.
As the Respondent noted, Ms Vallis did not intend to return to B&G until 26 July and Ms Aston was “more vague” about when she intended to return.[271] In other words, as at either date when the Applicants contended at hearing the Occupancy Agreements were frustrated, meaning brought to an end, neither Applicant considered the Occupancy Agreements had been brought to an end or regarded the border closure as having consequence for their immediate plans. Indeed, as at 26 June 2021 or 9 July 2021, the Applicants regarded their accommodation at B&G still to be theirs, and questions about when and how they would return to B&G would be considered in due course. That is inconsistent with the proposition that the Occupancy Agreements ended on 26 June or 9 July 2021.
[271] Transcript of proceedings dated 11 November 2022, page 314, lines 38-48
This circumstance highlights the flaw in the Applicants’ case, namely it is built not upon circumstances as at 9 July 2021 but upon what subsequently occurred. As the High Court pointed out in Scanlan’s case, whether a contract has been frustrated cannot be assessed by reference to “a certainty arrived at after the event”.[272]
[272] Scanlan’s, 184
Had the border closure lasted only a matter of a few weeks, following which the Applicants could have returned, no one would have suggested the Occupancy Agreements were frustrated. Yet there is no difference in principle between a temporary frustration for a week or a month, and the period of approximately four months from 9 July to 1 November 2021, following which the Applicants were able to return to B&G and did so.
Force majeure
We turn last to the Applicants’ submission drawn from the absence of a force majeure clause, meaning a clause stating the ongoing status of the Occupancy Agreements should a stated event or events occur. Force majeure clauses are often used to set out parties’ respective obligations and liabilities should performance of the contract not be possible by reason of a stated event such as fire, flood, storm or war.
We accept the Applicants’ submission that the absence of a force majeure clause, contractually stating how loss would be borne in the event of COVID-19 restrictions, left it “open”[273] for the Tribunal to find the Occupancy Agreements were frustrated but the submission did not advance the Applicants’ claim. It only removed a possible basis for why they were not. That however became irrelevant because the Respondent accepted, and indeed submitted, that the Occupancy Agreements “do not contain a force majeure clause”.[274]
[273] Applicants’ submissions dated 7 July 2022, page 10
[274] Respondent’s submissions dated 15 July 2022, at [71]
The Respondent’s position also answered the Applicants’ submission that the Respondent (at paragraph (e) of its “amended response to claim”) “invites the Tribunal to radically interpret a termination clause [meaning clause 12] as a force majeure clause”.[275] We disagree. The substance of the Respondent’s submission at paragraph (e) was that clause 12 required the Applicants to “bear the risk of COVID-19 related lockdowns and travel restrictions”,[276] not by interpreting clause 12 as a force majeure clause but as a matter of construction of the Occupancy Agreements.

Conclusion

[275] Applicants’ submissions dated 7 July 2022, page 13
[276] Respondent’s amended response to claim filed 1 July 2022 at (e)

In our view, for these reasons the Applicants’ claims fail. Accordingly, we will order the application in each proceeding be dismissed.

Order

In matter XD1099/2021, the application is dismissed.
In matter XD18/2022, the application is dismissed.

………………………………

Presidential Member G McCarthy

For and on behalf of the Tribunal

Date(s) of hearing:	9-11 November 2022
Counsel for the Applicants:	S Whybrow SC
Solicitors for the Applicants:	ANU Students’ Association
Counsel for the Respondent:	P Bindon
Solicitors for the Respondent:	King & Wood Mallesons