Mann v Hamilton Island Enterprises Limited
[2012] QCATA 142
•13 August 2012
| CITATION: | Mann and Anor v Hamilton Island Enterprises Limited [2012] QCATA 142 |
| PARTIES: | Stuart Mann Emma Mann (Applicants/Appellants) |
| v | |
| Hamilton Island Enterprises Limited (Respondent) |
| APPLICATION NUMBER: | APL020-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 13 August 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal granted. 2. Appeal allowed. 3. It is declared that the tenancy of the Appellants at Unit 4.1 Harbourview Apartments, Hamilton Island is a residential tenancy within the meaning, and for the purposes of the Residential Tenancies and Rooming Accommodation Act 2008. 4. No order as to costs. |
| CATCHWORDS: | Whether appellants’ right of occupation a residential tenancy – whether tenancy excepted as board or lodging – whether leave to appeal should be granted Residential Tenancies and Rooming Accommodation Act 2008, ss 8, 12, 28, 29, 32, 53, 433, 521 Coleman v Dornan [2011] QCATA 47 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Mr and Mrs Mann and their children rent a residential unit in Harbourview Apartments on Hamilton Island. It has 3 bedrooms and is fully self-contained. Their tenure depends on currency of their employment by Hamilton Island Enterprises Limited (Hamilton).
The Manns contend that their right to occupy those premises is a residential tenancy within the meaning of the Residential Tenancies and Rooming Accommodation Act 2008 (the Act) and seek a declaration to that effect.
Initially they approached the Residential Tenancies Authority. Incorrectly, it rejected their application on the ground that theirs was a long term lease, and, as such, was excluded from the Act by section 521. That is no longer an issue. Accommodation arrangements between employer and employee are quite capable of being residential tenancies within the meaning and for the purposes of the Act.[1]
[1] See sections 38(2), 288, 329(2)(g), 374.
The respondent Hamilton opposes the application, contending that the Manns are merely “boarders or lodgers”, and, as such, do not hold a residential tenancy to which the Act applies.[2] No formal lease or licence is in evidence, but that is by no means fatal to the claim[3]. When Mr Mann accepted Hamilton’s offer of employment in September 2006, he agreed to be “bound by [the] Hamilton Island Rules and Regulations” (the Rules), Clause 5 of which deals with employee accommodation. Mrs Mann signed a similar acceptance on an unspecified date in 2010.
[2] Residential Tenancies and Rooming Accommodation Act 2008, s 32(1).
[3] Section 12(3).
The Acting Magistrate who heard and decided the matter, sitting as a QCAT Member, dismissed the application. The Manns now seek leave to appeal that decision, on these grounds:
(a) That the Member failed to apply section 12(3) of the Act, in that he took no sufficient account of the oral and implied terms of the accommodation agreement between the parties;
(b) That the Member failed to consider the effect of section 53 of the Act upon the Respondent’s Rules and Regulations;
(c) That the Member erred in the application of section 433 of the Act, in relying unduly upon the said Rules and Regulations, and in failing to give due weight to the substance and intention of the said agreement;
(d) That the Applicants were denied natural justice, in that they were afforded no proper opportunity to answer the Respondent’s contention that, by virtue of section 32, the Act does not apply to their tenancy.
The Manns’ Submissions, summarised
What follows is a summary of the submissions made by Mr and Mrs Mann.
Section 32(1) does not, they say, apply. A lodger is someone who resides in another’s house, paying periodically for the accommodation. A boarder is one who pays for food and lodging at the house of another. We do not share our facilities with anyone else, we provide our own food, laundry and domestic cleaning, we have our own keys, and a right to exclude others. Hamilton’s agents have never entered without prior notification. The Respondent’s retention of a master key is immaterial. Despite the fact that Hamilton’s Rules refer to a “lodging agreement”[4], it is the substance and effect of the agreement that is decisive. Contracting out of the Act is forbidden: s 53(1). The Acting Magistrate paid insufficient attention to section 12, particularly subsections (1) and (2), and to the realities of our situation.
[4] Rule 5.1.
We were surprised by Hamilton’s resort to the “boarder or lodger” defence, and had insufficient time to respond to it; that was a denial of natural justice.
Hamilton’s Submissions, summarised
Hamilton’s submissions consist largely of a copy of their solicitors’ advice. Clearly privilege in that advice is waived. The Manns’ accommodation is governed by the Rules. It is not exclusive. For operational reasons occupants are often moved from one residence to another. Accommodation ranges from mining style “dongas” with shared facilities to some 3 bedroom units, in which occupants cater for themselves. Hamilton has access “under certain circumstances”, and control over visitors. The Manns could be asked to share their quarters in the event of a natural disaster. Hamilton has never acknowledged that it is subject to the Act, and regards the employees to whom it provides accommodation as boarders or lodgers. No tenancy agreement is issued.
Our legal advice is to the effect that, on balance, the exclusion in section 32 applies, namely “This Act does not apply to a residential tenancy agreement if the tenant is a boarder or lodger”. Those words bear their ordinary meanings.
The Act, in section 433, provides guidelines for differentiating residential tenancies subject to the Act from “boarder or lodger” arrangements. A separate dwelling may be a lodging arrangement if the employee lacks exclusive control. In this case Rules 5.4, 5.6, 5.7, 5.9 and 5.12 envisage considerable control by Hamilton. The Manns have their own keys, but Hamilton has unrestricted access. The Rules confer a licence only. “On balance” section 32 applies.
As the Manns allege, Hamilton has always given them notice before entering. But that is a “matter of policy”, not legal obligation. Their section 53 submission puts the cart before the horse. If they are boarders or lodgers, the Act does not apply, and no question of evasion can arise.
Consideration
The lease versus licence issue is a recurring theme of real property law. But this is not a case governed solely by the general law of landlord and tenant. The Act substantially modifies the common law.[5] Under the Act’s regime the question is not whether or not the Manns are lessees, but whether or not they occupy their unit as mere boarders or lodgers.
[5] Coleman v Doman [2011] QCATA 47 at [12].
An arrangement may be a residential tenancy although it does not involve exclusive possession.[6] A residential tenancy agreement may be wholly oral or part written and part oral, and may be implied.[7] The person conferring such a right is described in the Act as a “lessor”,[8] but the term “lessee” is eschewed in favour of “tenant”. Minors are capable of making residential agreements.[9]
[6] Section 12(2).
[7] Section 12(3).
[8] Section 8(1).
[9] Section 28.
However, the Act does not apply to certain residential tenancy agreements;[10] one such exception is where “the tenant is a boarder or lodger”.[11] That provision does not appear to be the subject of any direct authority, either in the courts or in this Tribunal. No assistance is to be derived from the Explanatory Notes to the Bill of 2008. I conclude, therefore, that the meanings of “boarder” and “lodger” are to be distilled from ordinary language, as Hamilton itself concedes.
[10] Section 29(2).
[11] Section 32(1).
According to the Oxford English Dictionary the verb “to lodge” refers to the provision of sleeping quarters to a guest or inmate in the provider’s house, while “to board” means to provide a lodger with meals at a fixed rate. The Collins English Dictionary (2008) describes a lodger as “a person who pays rent in return for accommodation in someone else's house” and a boarder as “a person who pays to live and have daily meals at another person's house or at a school”. Such residents are inmates in another person’s house,[12] dwellers in a place they cannot call their own.[13]
[12] Noblett v Manley [1952] SASR 155 at 158.
[13] Commissioner for Fair Trading v Voulon [2005] WASC 229.
The Department of Commerce (WA), administering legislation similar to the present Act, states in a consumer protection publication that “Boarders generally stay at another person's house paying rent with meals. Lodgers stay at another person's house and pay rent but are generally not supplied with meals.”
The Macquarie Dictionary (4th edition 2005) offers these definitions: “Boarder: someone who is supplied with meals and lodging”; “Lodger: someone who lives in hired quarters in another’s house”. With due respect, the learned Magistrate’s observation that dictionaries are “not particularly helpful”[14] is unduly pessimistic.
[14] Reasons for the primary decision, page 4.
Hamilton’s Rules strain to avoid the suggestion of a lease; they refer to a “lodging agreement” once (Rule 5.1) and to a “licence” five times (Rules 5.7, 5.8, 5.9 and 5.10), but to no avail if the agreements themselves create a residential tenancy (not necessarily a lease) to which the Act applies.[15] There was no magic in the expression “lodging accommodation licence” in Commissioner for Fair Trading v Voulon[16], where it was held that students and travellers were not mere boarders or lodgers because they received no meals or housekeeping services, and lived an “essentially independent existence”. At least some of those people could aptly be called itinerants; that description hardly applies to Mr and Mrs Mann.
[15] Section 53.
[16] [2005] WASC 229.
A residential tenancy agreement is one under which someone is given a right to occupy residential premises as a residence.[17] Hamilton concedes that the premises are “residential premises” and that the agreement is a residential tenancy agreement within the meaning of section 12.[18]
[17] Section 12(1).
[18] Hamilton’s submissions on appeal page 1.
The remaining and real question is whether this particular tenancy agreement is, or is not, an agreement for board or lodging, within the meaning of section 32(1). While the Act does not define either “boarder” or “lodger” it sets out, in section 433, some guidelines for deciding whether tenants are properly so described.
I turn, then, to the section 433 guidelines, and the facts and circumstances relevant to them.
(a)The extent of Manns’ control over the premises
As noted above, it is not necessary that a residential tenancy confer exclusive possession.[19] In Hamilton’s submissions, as in the primary decision, much is made of Rule 5.12, which reads: “[Hamilton] reserves the right to inspect [Hamilton] owned or controlled accommodation. The COO may direct a search ... if the COO suspects a breach of [the Rules].” However, this provision is not markedly different from that contained in Schedule 3 of the Property Law Act 1974[20], and in many instruments that are deemed to confer exclusive possession. There is no evidence of the frequency (or infrequency) of entries by Hamilton. Hamilton’s possession of a duplicate or master key is not, in the circumstances, decisive.[21] Clearly it was not intended to facilitate the delivery of meals or cleaning services. Fire emergencies may be one implicit purpose, and considering Hamilton Island’s exposure to extreme weather conditions, urgent precautions against storm damage may well be another.
[19] Section 12(2).
[20] Form number 5.
[21]Noble v Centacare (2003) 150 ACTR 12; [2003] ACTSC 37 at [43], citing Aslan v Murphy [1989] 3 All ER 130 at 135.
It is true that the form in Schedule 3 of the Property Law Act 1975 requires 2 days’ notice to the tenant, but the power in Hamilton’s Rule 5.12 is not nearly as unregulated as Hamilton suggests. The “lessor” must take reasonable steps to ensure the tenant has quiet enjoyment of the premises, and must not interfere with the reasonable peace, comfort or privacy of the tenant.[22] The “lessor’s” right of entry is limited to the grounds set out in section 192. Consent of the tenant and emergencies aside[23], a lessor may enter premises of the subject kind only if notice, in the approved form, is given to the tenant at least seven days or 24 hours beforehand, as the case may be.[24] The “house rules” must be in accordance with the lessor’s obligations and residents’ rights under [the] Act.[25] Hamilton’s admitted practice of giving notice before entry is not, as Hamilton claims, merely a matter of courtesy. Indeed, the existence of such a controlled right of entry serves to emphasise the tenants’ significant degree of control.[26]
[22] Section 183.
[23] Section 192(1)(j)-(l).
[24] Section 193(1)(a), (c).
[25] Section 268(2)(a)(ii).
[26] Street v Mountford [1985] AC 809 at 817-818.
In the light of those provisions, I consider that the Manns’ control over their 3-bedroom, self-contained unit, if not strictly exclusive, is practically so.
(b)The extent to which Hamilton, receiving an amount from the Manns for their right to reside at the premises, has control of the premises
This criterion is a mirror image of the first guideline. For the reasons above, I consider that Hamilton’s control of the premises lawfully occupied by the Manns is, in reality, quite limited.
(c)Whether another person, receiving an amount from the person for the right to reside at the premises, also resides at the premises
The answer to this question is clearly “No”.
(d)The provision of services by Hamilton to the Manns
It is undisputed that the Manns attend to their own catering, laundry, and cleaning. Hamilton’s provision of some furniture (a practice not inconsistent with a general law lease) and its occasional maintenance of whitegoods does not, in my view, nearly outweigh the considerations in (a) to (c), above.
(e)whether the person shares facilities, including the bathroom and kitchen facilities
There is no suggestion that this is, or was, the case at any material time. It is not to the point to say that, in an emergency some sharing might be required.[27] Section 433(2)(e) is expressed in the present tense.
(f)Anything else the tribunal considers relevant.
[27] Advice of Hamilton’s solicitors 16 November 2011, paragraph 2 page 3.
Hamilton acknowledges that it offers a wide variety of accommodation for its employees:[28]
“... This has ranged mostly from shared accommodation to instances ... where sharing MAY not be required ... It is very common for employees to be required to share accommodation and to be shifted ... this frequently occurs as we move from low to high season. We have accommodation styles ranging from what could be described as ‘dongas’ (mining style), bed sit with shared common facilities such as toilets and laundry (no kitchen), 1 bedroom self catered with shared common laundry, 1 bedroom fully self catered, bedroom fully self catered and some 3 bedroom fully self catered. ... If ... we suffered significant damage to a building due to a cyclone ... the Applicant[s] could receive [a] directive [to share]. ... The fact that the Applicant[s have] what we would call their own occupancy of their ... unit is as a result of [Hamilton] using significant efforts to provide accommodation to a standard as best as possible.”
[28] Submissions of Hamilton to the primary tribunal, paragraphs 2-7 (emphasis in original).
It is apparent from this summary that the Manns’ accommodation is at the high end of the scale of comfort and privacy, far removed from the true meaning of “board or lodging”, as defined in contemporary lexicons, and adumbrated in section 433. There is no evidence that the Manns have been required to move, or to share their family accommodation at any material time. The effect of the arrangement is that they enjoy an essentially independent existence,[29] which cannot be compared, for example, with the tenure of the disabled residents of the “village” in Noble v Centacare.[30]
[29] Commissioner for Fair Trading v Voulon [2005] WASC 229.
[30] (2003) 176 FLR 346; 150 ACTR 12.
It is unduly alarmist to claim, as Hamilton’s representative did before the Magistrate, that “the impact of this [claim] is very substantial to our business”.[31] Even if that were so, it should not determine the result of these proceedings. But in fact this is a decision confined to the particular facts and circumstances of the Manns’ occupancy; it does not purport to apply to all, or even most of the accommodation Hamilton provides for its employees, from “dongas” and shared facilities upwards. Only the tenancy of Unit 4.1, Harbourview Apartments, is now in question.
[31] Transcript of hearing, 3 November 2011, (T) page 10.
Natural Justice
It is unnecessary to decide this additional ground of appeal; it is sufficient to note that the Manns freely agreed to provide their submissions to the Magistrate within 7 days[32], and made no application for an extension of time. Those submissions make no complaint of surprise or insufficient time to deal with the “boarder or lodger” issue. On the contrary, they are largely devoted to that question.
[32] T page 12.
Should leave be granted?
As the Manns recognise, they have no appeal as of right, but must obtain leave to do so.[33] An applicant for leave must show that the decision in question is affected, arguably at least, by an appellable error, resulting in a substantial injustice.[34] It is not such an error to prefer one version of the facts to another, or to attribute more weight to the evidence of one witness than another.[35]
[33] Queensland Civil and Administrative Law Act 2009, s 142(3)(a)(i).
[34]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; Drew v Bundaberg Regional Council [2011] QCA 359 at [19].
[35] Fox v Percy (2003) 214 CLR 118 at 125-126.
In any event this is not a case of conflicting evidence, but of contested inferences from largely uncontested facts[36], and statutory interpretation.
[36]As in Noble v Centacare (2003) 176 FLR 346 at 355, rather than from construction of contractual terms, express or implied.
I am satisfied that the learned Acting Magistrate erred in law in applying the criteria set out in s 433, and in reaching the conclusion that the Manns are boarders or lodgers to whom the Act does not apply. I am satisfied that a substantial injustice would result if leave were refused. Accordingly I shall grant leave, allow the appeal, and grant the relief sought.
ORDERS
Leave to appeal granted.
Appeal allowed.
It is declared that the tenancy of the Appellants at Unit 4.1 Harbourview Apartments, Hamilton Island is a residential tenancy within the meaning, and for the purposes of the Residential Tenancies and Rooming Accommodation Act 2008.
2
6
0