Scoble v Schembri

[2024] NSWCATCD 34

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Scoble v Schembri [2024] NSWCATCD 34

Hearing dates:

23 February 2024

Date of orders:

12 March 2024

Decision date:

12 March 2024

Jurisdiction:

Consumer and Commercial Division

Before:

M Zraika, General Member

Decision:

(1) The Tribunal declares pursuant to s 11 of the Residential Tenancies Act 2010 that the agreement between the Applicant and the Respondent in respect of room xxx of xxx fell within the exception in s 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:

Residential Tenancies Act 2010. ss 3, 7, 8, 13.

Boarding Houses Act 2012. s32.

Landlord and Tenant (Amendment) Act 1948. s8.

Cases Cited:

Shapkin v The University of Sydney [2023] NSWCATAP 2

Pupuke v Stratford [2016] NSWCATAP 7

Wait v Wavel Heights P/L [2005] NSWCTTT 127

Pryor v Costa & Maroulis (Tenancy) [2005] NSWCTT 555

Roberts v Waverley M.C. (1998) 14 NSWLR 423

Guider v O’Neil [2019] NSWCAT

Jones v Dunkel (1959) 101 CLR 298

Category:

Principal judgment

Parties:

Darren Scoble (Applicant)
Anthony Winston Schembri (Respondent)

Representation:

Ms Crowley-Shaw, Solicitor (Applicant)
Mr Cook, Counsel (Respondent)

Solicitors:
Legal Aid New South Wales (Applicant)
Hammond Nguyen Turnbull (Respondent)

File Number(s):

2023/00443206

Publication restriction:

Nil

REASONS FOR DECISION

The Application

1. This matter was heard on 23 February 2024 and the decision was reserved pursuant to s56 of the Civil and Administrative Tribunal Act 2013.

2. These written reasons embody the findings of material facts, the applicable law, and the reasoning process leading to the conclusions and findings of the Tribunal.

3. The Applicant The Applicant Mr Darren Scoble filed an application with the Tribunal on 4 December 2023. The applicant seeks the following orders:

1. a declaration that the agreement between the applicant and the respondent Anthony Schembri is a residential tenancy agreement.

2. a declaration that the termination notice issued to the applicant was not given in accordance with the Residential Tenancies Act 2010.

3. and an order restraining the respondent from breaching the residential tenancy agreement.

4. The Respondent denies the agreement between the parties constitutes a residential tenancy agreement falling within the provisions of the Residential Tenancies Act 2010 (“RT Act”) and says at all material times the agreement between the parties was that of a boarder which is specifically excluded by s.8(1)(c) of the RT Act from the operation of the RT Act.

The Jurisdictional issue

5. Whether the Applicants agreement with the respondent constitutes a Residential tenancy agreement or an occupancy Agreement thus determining whether the Applicant is a tenant or a boarder.

6. Depending on the Tribunals finding regarding this jurisdictional issue will effectively determine whether the Tribunal has jurisdiction to hear and the determine the current application pursuant to the RT Act.

7. It should be noted for the avoidance of doubt that the Tribunal has jurisdiction per s. 32 of the Boarding Houses Act