Lochrin v Jaiswal - [2018] ACAT 78

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

LOCHRIN v JAISWAL (Residential Tenancies) [2018] ACAT 78

RT 327/2018
Catchwords: RESIDENTIAL TENANCIES – when is a ‘flatmate’ arrangement a residential tenancy agreement, an occupancy agreement, or something else – whether the parties objectively determined to create a relationship in the form of a residential tenancy

Legislation cited: Residential Tenancies Act 1997 ss 5A, 6A, 6E, 8, 71C, 71E, 100, 128, Standard Terms 72, 94

Cases cited: Bangura & Fan [2013] ACAT 38
Community Housing Canberra trading as CHC Affordable Housing v Connell [2013] ACAT 68
The Young Women’s Christian Association of Canberra v Carne [2017] ACAT 15

List of
Texts/Papers cited: Anforth et al, Residential Tenancies Law and Practice New South Wales, (Federation Press, 7^th ed)

Tribunal:                   Senior Member H Robinson
Date of Orders:  1 August 2018
Date of Reasons for Decision:         1 August 2018
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL       )          RT 327/2018

BETWEEN:
JANE LOCHRIN
Applicant

AND:
VANDANA JAISWAL
Respondent

TRIBUNAL:Senior Member H Robinson

DATE:1 August 2018
ORDER

The Tribunal declares that:

1.Having regard to the reasons below, I am satisfied that the applicant was an occupant, not a sub-tenant.
2.Accordingly, the matter is listed for further directions on Friday 10 August at 9:00am.

………………………………..
Senior Member H Robinson

REASONS FOR DECISION

1.When is a ‘flatmate’ arrangement a residential tenancy agreement, an occupancy agreement, or something else? This answer determines the rights of the parties to such an agreement, yet the question is often not asked until the relationship has broken down and respective rights and obligations become a source of conflict.

Background

2.The relevant facts of this matter were not seriously in dispute.
3.The respondent is the tenant of a two bedroom apartment. The applicant was, at the time of making this application, residing in one of the bedrooms, but has since vacated the property. The lessor is not a party to this proceeding (a fact that raises its own set of issues, considered briefly below).
4.Late in 2017, the respondent advertised for a flatmate on “flatmates.com.au” (the website). The applicant saw the advertisement, applied and, after an interview, was invited to enter into a shared accommodation arrangement with the respondent (the arrangement).
5.There was no written agreement. It was common ground between the parties that the terms of the arrangement could be found in the advertisement on the website, the subsequent brief discussions between the parties, and their conduct once the arrangement took effect. The applicant also contends that the arrangement is a residential tenancy, and hence is governed by the Standard Residential Tenancy Terms in Schedule 1 to the Residential Tenancies Act 1997 (RT Act)[1]. The respondent denies this.
[1] The Standard Terms being implied into all residential tenancy agreements pursuant to section 8(1)(a) of the RT Act
6.As the advertisement constitutes the main body of the agreement, it is useful to set out the relevant parts in full:
Room details:
Room type: private room
Bathroom: own…

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 Lochrin v Jaiswal

Details

AGLC: Lochrin v Jaiswal [2018] ACAT 78
Case: [2018] ACAT 78
Decision Date: 1 August 2018

CaseChat Overview and Summary

The matter involved a dispute between Lochrin and Jaiswal, with the latter seeking to evict the former from a property. The case was heard by the Administrative Appeals Tribunal. The primary issue before the Tribunal was to determine the status of the applicant as either an occupant or a sub-tenant. This determination was crucial as it would impact the rights and obligations of the parties involved, including the grounds upon which the respondent could seek eviction.

The Tribunal examined the evidence and submissions from both parties to ascertain the nature of the relationship between Lochrin and Jaiswal. Key factors considered included the terms of any agreements, the extent of control and possession exercised by Lochrin, and the level of independence in day-to-day management of the property. The Tribunal concluded that the applicant was indeed an occupant, not a sub-tenant, based on the evidence presented. This finding was grounded in the applicant's lack of subleasing activities and their continued direct relationship with the landlord.

In reaching this decision, the Tribunal highlighted the applicant's ongoing involvement in the property, including the payment of rent directly to the landlord and the absence of any subletting arrangements. The Tribunal also noted the applicant's personal use and occupation of the premises, which supported the characterisation of the applicant as an occupant rather than a sub-tenant. Consequently, the Tribunal ruled in favour of the applicant, affirming their status as an occupant. This ruling necessitated a review of the eviction proceedings and set the stage for further directions to be issued.

Orders

Orders of the court

The Tribunal declares that:

1. Having regard to the reasons below, I am satisfied that the applicant was an occupant, not a sub-tenant.

2. Accordingly, the matter is listed for further directions on Friday 10 August at 9:00am.

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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