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

1. 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.

2. 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.

3. 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

4. The applicants’ evidence and submissions included the following.

5. The agreement was a residential tenancy agreement. They had exclusive possession of the premises since they moved in.

6. 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.

7. 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 off to the property. The applicants made an application to the Tribunal and told the respondent. The respondent ignored that, and permitted demolition of the house to commence before the applicants had vacated. The applicants’ belongings were still in the house, and became affected by asbestos. Some items that the applicants had removed from the house were taken by other people. The applicants had to pay for expensive alternate accommodation as they had no other choice.

Respondent’s case

8. The respondent’s evidence and submissions included the following.

9. The arrangements to reside in the premises that the parties entered into are analogous to that of boarders/lodgers, and are excluded from the Act under section 8(1)(c). The arrangement is as set out in the written agreements signed by the parties. The respondent remained in possession and retained its quality as “master of the house”, reserving to itself the general control and dominion. There is nothing in the written agreements or the surrounding circumstances that indicated that, at the time the agreements were entered, the parties intended to enter a residential tenancy agreement.

10. The respondent did not tell the applicants that “most did not apply” to them. The respondent explained the documents to the applicants and gave them time to read the documents and ask any questions before signing. This included telling the applicants that it was not like a lease, that there were no drugs, alcohol or smoking at the property, and no sleepovers, and that if there was a breach the respondent could terminate the agreement immediately. Also, each person had to have their own room and their own agreement, and if someone moved out then the respondent could potentially move someone else in.

11. The applicants, and the third person, signed the agreements and moved into the property on 4 January 2022. The third person moved out on 2 May 2022. The respondent did not organise a replacement because demolition and rebuilding work was scheduled, although ultimately delayed for some time. The applicants were given notice on 3 January 2023 that the agreement would be terminated on 28 February 2023 as demolition was to commence. The applicants did not vacate by that date and stopped paying the accommodation fees, and became difficult to contact. The applicants were told on 1 March 2023 that they could have the property for another two to four weeks. In early April 2023, Ms Whiteford attended the property and assisted the applicants to pack and leave the premises, and then demolition commenced.

Legislation and legal principles

12. Section 11 of the Act provides:

1. Declaration by Tribunal

The Tribunal may, on application by the Secretary or another person, make an order declaring that a specified agreement is, or is not, a residential tenancy agreement to which this Act applies or that specified premises are, or are not, premises to which this Act applies.

Note—

Under section 195, the Secretary may intervene in proceedings before the Tribunal that are brought by another person.

13. Section 13 of the Act provides, relevantly:

13   Agreements that are residential tenancy agreements

(1)  A residential tenancy agreement is an agreement under which a person grants to another person for value a right of occupation of residential premises for the purpose of use as a residence.

(2)  A residential tenancy agreement may be express or implied and may be oral or in writing, or partly oral and partly in writing.

(3)  An agreement may be a residential tenancy agreement for the purposes of this Act even though—

(a)  it does not grant a right of exclusive occupation, or

(b)  it grants the right to occupy residential premises together with the letting of goods or the provision of services or facilities.

Note—

See section 8 for agreements that are not covered by this Act. Section 7 sets out premises not covered by this Act.

...

14. As noted therein, section 7 of the Act sets out premises to which Act does not apply. It is not presently relevant. Section 8, which sets out agreements to which the Act does not apply, is relevant and includes:

1. Agreements to which Act does not apply

(1) This Act does not apply to the following agreements—

…

(c) an agreement under which a person boards or lodges with another person,

…

15. For an occupant to be a boarder or lodger the owner “must remain in possession and retain his quality as master of the house, reserving to himself the general control and dominion over the whole, although he may have agreed to give to the other exclusive enjoyment of the occupation of part” (Pupuke v Stratford [2016] NSWCATAP 7 at [23], approving the test set out in Pryor v Costa & Maroulis (Tenancy) [2005] NSWCTT 555). This test was also approved by the Appeal Panel in Shapkin v The University of Sydney [2023] NSWCATAP 2 (“Shapkin”).

16. In Shapkin, the Appeal Panel explained that physical presence was not required (at [81]-[82]):

[81] …a requirement for a physical presence would inappropriately limit what is meant by the stipulation that the owner “remain in possession and retain his quality as master of the house”. It is the legal right to possession, not the physical fact of exclusive “possession” or occupation, that is decisive: Swan v Uecker (2016) 50 VR 74 at [36] (Croft J quoting McHugh J in Western Australia v Ward (2002) 213 CLR 1 at [502] – [504]).

[82] Here, whilst the University did not have a physical presence at the Residence, the terms of the Residence Agreement, including the combination of the University’s right to enter the Residence at any time, to select the room to which Mr Shapkin was allocated, to move him to a different room or an entirely different residence, to install CCTV cameras, to require him to notify the University of any absences and to restrict certain types of social activities, together with the provision of cleaning and other services, were consistent with the University remaining in possession and retaining its quality as “master of the house”.

Consideration

17. I accept that the agreement between the parties is as set out in the written agreements signed by them. I am not satisfied that the respondent, by Ms Whiteford, told the applicants that most of the content of the agreements did not apply. I accept it is an important part of the respondent’s operations that it have the rights as set out in the written agreement, and the respondent acted in accordance with those rights including by conducting regular, unannounced inspections (as set out in the letter by Tanya Jones).

18. Those agreements are consistent with a boarder/lodger arrangement in accordance with Shapkin. Specifically, the following aspects of the agreement indicate the respondent remained in possession and retained its quality as “master of the house”, and indicate the parties intended an arrangement other than a residential tenancy agreement:

1. The documentation refers to the agreement as a licence agreement, and the parties as licensor and licensee

2. Each applicant’s agreement was in respect of an individual room

3. The amount payable each week to occupy was referred to as a “room fee”

4. There was an “application fee” payable, and an “admin default fee” payable (which I understand could be charged for late room fee payments)

5. The applicants agreed to abide by house rules, refrain from drinking any alcohol, and to maintain a healthy living standard

6. The applicants were required to show respect and manners to other occupants

7. Immediate termination of the licence to occupy could occur in certain circumstances

8. The respondent could re-assign the applicants to another room in the premises or to another address

9. The respondent could enter any room without prior notice, including to “facilitate and maintain good order and discipline”

10. Weekly inspections by the respondent could take place

11. No guests were permitted to stay overnight

12. The respondent was entitled to immediately terminate the licence for any breach of the agreement

13. The agreement expressly provides that the agreement is exempt from the provisions of the Act and the applicants expressly waived the benefit of the provisions of the Act.

Conclusion

19. 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. 

20. It follows that the Tribunal does not have jurisdiction to hear and determine the balance of the application.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 08 August 2024