Wilson v Romanchik

[2012] WASC 328

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   WILSON -v- ROMANCHIK [2012] WASC 328

CORAM:   MASTER SANDERSON

HEARD:   5 SEPTEMBER 2012

DELIVERED          :   12 SEPTEMBER 2012

FILE NO/S:   CIV 2195 of 2012

BETWEEN:   SANDRA LYNNE WILSON

Plaintiff

AND

VOLHA ROMANCHIK
Defendant

Catchwords:

Application to review decision of magistrate - Whether defendant a tenant - Turns on own facts

Legislation:

Magistrates Court Act 2004 (WA)
Residential Tenancies Act 1987 (WA)

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Plaintiff:     In person

Defendant:     In person

Solicitors:

Plaintiff:     In person

Defendant:     In person

Case(s) referred to in judgment(s):

Commissioner for Fair Trading v Voulon [2005] WASC 229

1. MASTER SANDERSON:  It is difficult to know how to characterise this application.  On 16 July 2012 Ms Wilson (who I will refer to as the applicant) lodged a 'notice of originating motion'.  The originating process did not indicate what relief the applicant was seeking.  On the same day the applicant filed a document entitled 'affidavit verifying list of documents'.  Attached to that affidavit and described as 'Annexure' were a number of allegations made against Ms Romanchik (who I will refer to as the respondent).

2. At some later date the applicant lodged what she describes as 'grounds of application'.  Based upon this document it would appear the applicant is attempting to appeal against a decision of Magistrate Cockram made under the Residential Tenancies Act 1987 (WA) (the Act) in the Magistrate's Court of Western Australia RSTN 4855 of 2012 between these two parties. In the Magistrate's Court proceeding the defendant had claimed a refund of rent for a period of time when she was denied occupation of premises of which the applicant was the owner.

3. Based upon the transcript of the proceedings before the learned magistrate, the question at issue was whether the defendant was a lodger or whether she was a tenant.  If she was properly described as the former she was not covered by the Act.  If she was the latter, the Act applied and the defendant's application was to be determined based upon the Act.

4. The learned magistrate determined the defendant was a tenant.  The learned magistrate gave quite detailed reasons for reaching that conclusion.

5. Under s 26(2) of the Act a decision of the magistrate is final unless the Supreme Court is satisfied the Magistrate's Court did not have jurisdiction under the Act.  Implicitly this is what is raised by the applicant.  She says the learned magistrate was at fault in determining the defendant was a tenant.

6. In the course of his reasons the learned magistrate referred to the decision of Hasluck J in Commissioner for Fair Trading v Voulon [2005] WASC 229. His Honour quoted at some length from the decision indicating that he had a clear grasp of the basis upon which it is to be determined whether an individual is a lodger or a tenant. The learned magistrate then applied the law to the facts of the case before him and concluded the defendant was a tenant. Considering the totality of the evidence it is clear the learned magistrate reached the correct conclusion.

7. The proper disposition of this matter is to dismiss the application. If it is an application under s 36 of the Magistrates Court Act 2004 (WA) it is not in proper form. But even if it was characterised as an application for a review order under s 36(1) of the Magistrate's Court Act the application would fail.

8. For these reasons I advised the parties I would dismiss the application.