Stevens v SPL Living Pty Ltd - [2023] NSWCATCD 160

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Stevens v SPL Living Pty Ltd [2023] NSWCATCD 160
Hearing dates: 8 November 2023
Date of orders: 14 December 2023
Decision date: 14 December 2023
Jurisdiction: Consumer and Commercial Division
Before: S Hanstein, General Member
Decision:
1. The Tribunal declares that the agreements between the applicants and the respondent in respect of the rooms in the premises at 16 Eurimbla Street, Thornton are not residential tenancy agreements to which this Act applies.
2. The Tribunal does not have jurisdiction to hear and determine the balance of the application.

Catchwords:
LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Whether residential tenancy agreement exists — Whether occupant is a boarder or lodger

Legislation Cited:
Residential Tenancies Act 2010

Cases Cited:
Pupuke v Stratford [2016] NSWCATAP 7;
Shapkin v The University of Sydney [2023] NSWCATAP 2

Texts Cited:
None

Category: Principal judgment
Parties: Rachael Stevens and Rod Stainton (applicants)
SPL Living Pty Ltd (respondent)
Representation: Applicants in person
Mr Ryan for the respondent

File Number(s): 2023/00394417 (previously RT 23/24130)
Publication restriction: Nil

Reasons for decision

The applicants claim they were tenants of the premises under a residential tenancy agreement and they were unlawfully removed from premises. They seek an order declaring that the agreement was a residential tenancy agreement under the Residential Tenancies Act 2010 (“Act”) and compensation, including because they had to pay for alternate accommodation, they lost belongings and suffered emotional distress.
The first issue to be determined is whether there was a residential tenancy agreement between the applicants (as tenants) and the respondent (as landlord). If there is no residential tenancy agreement, the Tribunal does not have jurisdiction to hear and determine the claim for compensation.
Both parties provided documentary material in support of their cases and gave oral evidence. I have considered that material in reaching my decision.

Applicant’s case

The applicants’ evidence and submissions included the following.
The agreement was a residential tenancy agreement. They had exclusive possession of the premises since they moved in.
In about late December 2021, the applicants saw a banner out the front of a house which said “Housing for everyone”. The applicants were effectively homeless at the time. They entered and spoke to an employee of the respondent, Ms Whiteford. They were seeking a house for themselves and their child, and also a third person. She told them that the respondent did not usually take in families, that it was usually people of one sex in a house, but that she might have a house available. When they filled out the application forms, Ms Whiteford told them that “most does not really relate to you”. Ms Whiteford was busy and did not have time to explain much of the forms to the applicants.
The applicants received notice to vacate the premises. They were looking for alternate accommodation but had not been successful. They received advice not to leave until they had somewhere to go. The respondent turned the power…

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 Stevens v SPL Living Pty Ltd

Details

AGLC: Stevens v SPL Living Pty Ltd [2023] NSWCATCD 160
Case: [2023] NSWCATCD 160
Decision Date: 14 December 2023

CaseChat Overview and Summary

In the case of Stevens v SPL Living Pty Ltd, the dispute revolved around the classification of a residential tenancy agreement under the Residential Tenancies Act 2010 (NSW). The applicants, Stevens, sought a declaration from the Tribunal that the agreements in question were indeed residential tenancy agreements. Conversely, the respondent, SPL Living Pty Ltd, argued that the agreements were not residential tenancy agreements, contending instead that the applicants were boarders or lodgers. The matter was heard and determined by the Civil and Administrative Tribunal (NCAT) of New South Wales.

The central legal issue before the Tribunal was whether the agreements between the applicants and the respondent constituted residential tenancy agreements under the Act, or if the applicants should be classified as boarders or lodgers, thus falling outside the Act's purview. This distinction was pivotal as it determined the applicability of the Act and the jurisdiction of the Tribunal. The Tribunal had to closely examine the nature of the agreements and the living arrangements to ascertain the correct classification.

In its decision, the Tribunal found that the agreements did not constitute residential tenancy agreements as defined by the Act. The Tribunal noted that the living arrangements did not fit the criteria for a residential tenancy, and instead, the applicants were classified as boarders or lodgers. Consequently, the Tribunal held that it did not have jurisdiction to hear and determine the balance of the application, as the agreements did not fall under the Act. The Tribunal issued a declaration that the agreements in question were not residential tenancy agreements.

The Tribunal’s final orders declared that the agreements between the applicants and the respondent concerning the rooms in the premises at 16 Eurimbla Street, Thornton, were not residential tenancy agreements to which the Act applied. Additionally, the Tribunal determined that it lacked jurisdiction to hear and determine the rest of the application.

Orders

Orders of the court

1. The Tribunal declares that the agreements between the applicants and the respondent in respect of the rooms in the premises at 16 Eurimbla Street, Thornton are not residential tenancy agreements to which this Act applies.

2. The Tribunal does not have jurisdiction to hear and determine the balance of the application.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Declaration by Tribunal Agreements to which Act does not apply

Medium Neutral Citation:	Stevens v SPL Living Pty Ltd [2023] NSWCATCD 160
Hearing dates:	8 November 2023
Date of orders:	14 December 2023
Decision date:	14 December 2023
Jurisdiction:	Consumer and Commercial Division
Before:	S Hanstein, General Member
Decision:	1. The Tribunal declares that the agreements between the applicants and the respondent in respect of the rooms in the premises at 16 Eurimbla Street, Thornton are not residential tenancy agreements to which this Act applies. 2. The Tribunal does not have jurisdiction to hear and determine the balance of the application.
Catchwords:	LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Whether residential tenancy agreement exists — Whether occupant is a boarder or lodger
Legislation Cited:	Residential Tenancies Act 2010
Cases Cited:	Pupuke v Stratford [2016] NSWCATAP 7; Shapkin v The University of Sydney [2023] NSWCATAP 2
Texts Cited:	None
Category:	Principal judgment
Parties:	Rachael Stevens and Rod Stainton (applicants) SPL Living Pty Ltd (respondent)
Representation:	Applicants in person Mr Ryan for the respondent
File Number(s):	2023/00394417 (previously RT 23/24130)
Publication restriction:	Nil