Breakspear v Margetic and Citegram Development Pty Ltd - [2025] NSWCATCD 30

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Breakspear v Margetic and Citegram Development Pty Ltd [2025] NSWCATCD 30
Hearing dates: 10 December 2024, 17 April 2025
Date of orders: 15 May 2025
Decision date: 15 May 2025
Jurisdiction: Consumer and Commercial Division
Before: E Yin, General Member
Decision:
1. The Tribunal declares pursuant to section 11 of the Residential Tenancies Act 2010 that the agreement between the applicant and the first respondent in respect of Room 4 of the house located ***** Hazelbrook NSW fell within the exception in section 8(1)(c) of the Residential Tenancies Act 2010 and as such is not a residential tenancy agreement to which the Residential Tenancies Act 2010 applies.
2. The application is otherwise dismissed.

Catchwords:
Residential Tenancy – tenant or boarder

Legislation Cited:
Civil and Administrative Tribunal Act 2013, s 29
Residential Tenancies Act 2010, ss 3, 8, 11, 13
Boarding Houses Act 2012, ss 4, 5, 27

Cases Cited:
Codelfa Constructions Pty Ltd v State Rail Authority of NSW [1982] HCA 24; (1982) 149 CLR 337
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165
Shapkin v The University of Sydney [2023] NSWCATAP 2
Pupuke v Stratford [2016] NSWCATAP 7
Pryor v Costa & Maroulis (tenancy) [2005] NSWCTT 555

Category: Principal judgment
Parties:
Joanne Breakspear (Applicant)

Jenny Margetic (First Respondent)
Citegram Development Pty Ltd (Second Respondent)
Representation:
Joanne Breakspear – self represented (Applicant)

Jenny Margetic – self represented (First Respondent)
Sam Margetic - director (Second Respondent)

File Number(s): 2024/335082
Publication restriction: Nil

REASONS FOR DECISION

(I) Introduction

This is an application by Ms Joanne Breakspear (‘the applicant’) for a declaration pursuant to section 11 of the Residential Tenancies Act 2010 (‘RT Act’) and compensation pursuant to section 187 of the RT Act. The amount sought by the applicant against both respondents is $8,500.00. The application was filed on 10 September 2024.
The respondents are Citegram Developments Pty Ltd (‘Company’) and Ms Genevieve Margetic. The Company is the owner of the property located at ***** Hazelbrook NSW and operates it as a boarding house (‘House’). Ms Margetic is an employee of the Company and is the manager of the House. She handles the day-to-day affairs of the House on behalf of the Company.
The applicant alleges that the agreement (‘Agreement’) which she had signed with the Company is a residential tenancy agreement for a room at the House. This agreement is titled ' Standard occupancy agreement for general boarding houses under the Boarding Houses Act 2012’. It is signed by the applicant and Ms Margetic. The applicant also seeks compensation against Ms Margetic for personal injury, that is the exacerbation of her mental illness, due to the alleged actions of Ms Margetic against her.
The respondents oppose the application. The Company stated that the Agreement is governed by the Boarding Houses Act 2012 (‘BH Act’) and is not…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Breakspear v Margetic and Citegram Development Pty Ltd

Details

AGLC: Breakspear v Margetic and Citegram Development Pty Ltd [2025] NSWCATCD 30
Case: [2025] NSWCATCD 30
Decision Date: 15 May 2025

CaseChat Overview and Summary

Breakspear, the applicant, sought a declaration from the Civil and Administrative Tribunal of New South Wales that an agreement between the applicant and Margetic, the first respondent, and Citegram Development Pty Ltd, the second respondent, was a residential tenancy agreement. The dispute arose from an agreement for the use of Room 4 of a house located in Hazelbrook, NSW. The Tribunal was required to decide whether the agreement constituted a residential tenancy agreement under the Residential Tenancies Act 2010.

The central legal issue was whether the agreement between the applicant and the first respondent was a residential tenancy agreement. This required the Tribunal to consider whether the agreement fell within the definition of a residential tenancy agreement under section 7 of the Act, specifically whether it was an agreement for the occupation of premises as a residence. The Tribunal also had to consider whether the agreement fell within the exception in section 8(1)(c) of the Act, which excludes agreements for the occupation of premises by a boarder.

The Tribunal found that the agreement did not constitute a residential tenancy agreement. It determined that the applicant did not occupy the premises as their residence, but rather as a boarder. The Tribunal noted that the agreement did not provide the applicant with exclusive possession of Room 4, and that the applicant shared common areas with the first respondent. The Tribunal concluded that the agreement fell within the exception in section 8(1)(c) of the Act, and as such, was not a residential tenancy agreement.

The Tribunal dismissed the applicant’s application for a declaration that the agreement was a residential tenancy agreement. It did, however, declare that the agreement fell within the exception in section 8(1)(c) of the Act and was not a residential tenancy agreement. The Tribunal did not make any further orders.

Orders

Orders of the court

1. The Tribunal declares pursuant to section 11 of the Residential Tenancies Act 2010 that the agreement between the applicant and the first respondent in respect of Room 4 of the house located ***** Hazelbrook NSW fell within the exception in section 8(1)(c) of the Residential Tenancies Act 2010 and as such is not a residential tenancy agreement to which the Residential Tenancies Act 2010 applies.

2. The application is otherwise dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Breakspear v Margetic and Citegram Development Pty Ltd [2025] NSWCATCD 30
Hearing dates:	10 December 2024, 17 April 2025
Date of orders:	15 May 2025
Decision date:	15 May 2025
Jurisdiction:	Consumer and Commercial Division
Before:	E Yin, General Member
Decision:	1. The Tribunal declares pursuant to section 11 of the Residential Tenancies Act 2010 that the agreement between the applicant and the first respondent in respect of Room 4 of the house located ***** Hazelbrook NSW fell within the exception in section 8(1)(c) of the Residential Tenancies Act 2010 and as such is not a residential tenancy agreement to which the Residential Tenancies Act 2010 applies. 2. The application is otherwise dismissed.
Catchwords:	Residential Tenancy – tenant or boarder
Legislation Cited:	Civil and Administrative Tribunal Act 2013, s 29 Residential Tenancies Act 2010, ss 3, 8, 11, 13 Boarding Houses Act 2012, ss 4, 5, 27
Cases Cited:	Codelfa Constructions Pty Ltd v State Rail Authority of NSW [1982] HCA 24; (1982) 149 CLR 337 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 Shapkin v The University of Sydney [2023] NSWCATAP 2 Pupuke v Stratford [2016] NSWCATAP 7 Pryor v Costa & Maroulis (tenancy) [2005] NSWCTT 555
Category:	Principal judgment
Parties:	Joanne Breakspear (Applicant) Jenny Margetic (First Respondent) Citegram Development Pty Ltd (Second Respondent)
Representation:	Joanne Breakspear – self represented (Applicant) Jenny Margetic – self represented (First Respondent) Sam Margetic - director (Second Respondent)
File Number(s):	2024/335082
Publication restriction:	Nil