Breakspear v Margetic and Citegram Development Pty Ltd [2025] NSWCATCD 30

(II) Procedural history and Withdrawal Application

1. On 10 December 2024, the matter was listed before me for a contested hearing. It was adjourned part heard as the time allocated was taken up by the applicant's case. Additionally, the applicant did not pick up the respondents' evidence from the Penrith Registry as ordered to do so by the Tribunal on 30 September 2024 and wished to consider the respondents' case. The matter was listed for a contested hearing on 6 March 2025.
2. On 13 February 2025, a Request for Withdrawal of Application ('Request') was received by the Penrith Registry. Upon receipt of this Request, the Registrar vacated the hearing date of 6 March 2025 and notified the parties on 14 February 2025.
3. On 17 February 2025, the applicant filed a statutory declaration stating that she did not file the Request and requested the matter be listed for hearing on 6 March 2025.
4. Due to the various contested matters in the hearing list and other businesses of the Tribunal, the matter was not able to resume until 17 April 2025. During that time, both parties filed documents (which dealt with the second respondent's adjournment application) which made comments in relation to the Request.
5. At the start of the second day of the hearing, the respondents stated that the matter ought to be dismissed as the applicant had filed the Request.
6. The applicant opposed this. She denied filing the Request and stated that when she was notified that the matter had been dismissed, she made enquiries with the Registry and had the matter relisted before the Tribunal as soon as possible. The applicant relied on her statutory declaration dated 17 February 2025, which was filed with the Registry on the same day. This statutory declaration was admitted into evidence and marked 'Exhibit A3'.
7. The applicant further stated that she reported the alleged forgery to the NSW Police, but the Police declined to investigate as they consider it to be a civil matter. She accused Ms Margetic of forging her signature on the Request to have these proceedings dismissed.
8. Ms Margetic denied the allegations. She relied her statutory declaration filed on 14 April 2025. This statutory declaration was admitted into evidence and is marked 'Exhibit R3'. She stated that she received a call from Penrith Police station on 17 February 2025 where the officer informed Ms Margetic about the applicant's accusations against her, being the forging of the applicant's signature. Ms Margetic denied those allegations when it was put to her by the Police.
9. Given that these proceedings and the Request were made on the presumption that the Tribunal has jurisdiction to determine the application under the RT Act, I will deal with the Request if I find that the Tribunal has jurisdiction to determine the application.

1. Section 29 of the Civil and Administrative Tribunal Act 2013 sets out the jurisdiction of the Tribunal as follows:

(1) The Tribunal has "general jurisdiction" over a matter if -

(a) legislation (other than this Act or the procedural rules) enable the Tribunal to make decisions or exercise other functions, whether on application or of its own motion, of a kind specified by the legislation in respect of that matter, and

(b) the matter does not fall within the administrative review jurisdiction.

1. Whether the Agreement constitutes a residential tenancy agreement or an occupancy agreement will determine whether the applicant is a tenant or a boarder. A finding of this jurisdictional issue will effectively determine whether the Tribunal has jurisdiction to hear and determine this application under the RT Act.
2. For the avoidance of doubt, the Tribunal has jurisdiction under section 32 of the BH Act to determine matters falling under that Act. However, the current application is not made under the BH Act and accordingly, the issue of jurisdiction will be determined solely under the RT Act.
3. In the current case, the starting position is that the Tribunal has jurisdiction to determine whether it has jurisdiction to hear and determine the matter under the RT Act.

1. It is common ground between the applicant and the respondents that the objective common law test of mastery, dominion and control was applicable in determining whether the applicant was a tenant or a boarder.
2. Section 13 of the RT Act defines a 'residential tenancy agreement' in the following terms:

(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.

1. Section 3 of the RT Act defines residential premises as follows:

residential premises means any premises or part of premises (including any land occupied with the premises) used or intended to be used as a residence.

1. However, section 8(c) of the RT Act provides that the Act does not apply to "an agreement under which a person boards or lodges with another person". The phrase "a person who boards or lodges with another person" is not defined in the RT Act. However, the expression has been considered in several cases in tribunals that were the predecessor to this Tribunal. In Pryor v Costa & Maroulis (tenancy) [2005] NSWCTT 555 at [32]- [34] the Tribunal, in considering the meaning of this expression under the earlier Residential Tenancies Act, 1987 said:

32. The term lodger is not defined in the 1987 Act and its meaning is to be derived from case law. While many would be sympathetic to the view of Member Hopkins in Johnson v Lismore Woman's & Children's Refuge Inc (RT 00/42507 26 February 2001) that the common law concept of lodgers is outmoded being out of place in contemporary society and in need of legislative review, it is necessary to examine the common law definitions to ascertain if in this case the Applicant was a lodger.

33. In Ellis v City Woman's Hostel (RTT 97/022789, 15 June 1998) Member Hopkins brought together the decisions to that time to articulate the fundamental elements of what makes an occupier of premises a lodger by stating:

".. I am of the view that a "lodger" ... is a person who has been granted the right, for value, to occupy ... premises ... for the purpose of their use as a residence, ... in circumstances where the owner remains in possession and occupation (either personally or by his servant), and retains the character of master of the house and with the owner exercising control and dominion over the whole."

By so viewing a lodger, Member Hopkins was following the previous decision of Chairperson Rustin in Walker v Puvesi (RTT 86/6) who stated, after examining the relevant cases spanning over a century, that in order for an occupier to be seen as a lodger, the distinguishing factor is the nature of the owner's occupation:

... 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.

34. In summary, the occupier must have been granted, in consideration for value, the right to occupy premises, part of which may be exclusive, while the owner still retains, personally or by a servant, power to reprove all occupants who do not submit to the owner's will with regard to any matter touching upon the premises. The owner must remain the constant, conspicuous and prevailing authority over the premises on all matters.

1. It should be noted that since those cases were decided, the BH Act has been introduced by Parliament.
2. Section 27 of the BH Act defines 'occupancy agreement' and 'rental agreement' as:

"occupancy agreement", in relation to a registrable boarding house, means a written or unwritten agreement -

(a) this is between a proprietor of the boarding house (or a person acting on behalf of the proprietor) and a resident of the house (or a person acting as an authorised representative of the resident), and

(b) under which the resident is granted the right to occupancy, for a fee or reward, one or more rooms in the boarding house as a resident of the house,

but does not include a rental agreement between a proprietor and the resident of a registrable boarding house (or any persons acting on their behalf).

"rental agreement" means -

(a) a residential tenancy agreement within the meaning of the RT Act, or

(b) ....

1. Section 5 of the BH Act defines 'registrable boarding house' as:

(1) For the purpose of this Act, a 'registrable boarding house' means any of the following -

(a) ...

(2) Boarding premises are a 'general boarding house' if the premises provide beds, for a fee or reward, for use by 5 or more residents (not counting any residents who are proprietors or managers of the premises or relatives of the proprietors or managers).

...

1. Section 4 of the BH Act defines 'boarding premises' as:

"boarding premises" means premises (or a complex of premises) that -

(a) are wholly or partly a boarding house, rooming or common lodgings house, hostel or let in lodgings, and

(b) provide boarders or lodgers with a principal place of residence, and

(c) may have shared facilities (such as a communal living room, bathroom, kitchen or laundry) or services that are provided to boarders or lodgers by or on behalf of the proprietor, or both, and

(d) have rooms (some or all of which may have private kitchen and bathroom facilities) that accommodate one or more boarders or lodgers.

1. However, in my view, the provisions of the BH Act do not alter the test set out in Pryor, namely 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."
2. In Shapkin v The University of Sydney [2023] NSWCATAP 2 ("Shapkin") the Appeal Panel stated:

64. The expression "a person who boards or lodges with another person" is not defined in the RT Act. In Pupuke v Stratford [2016] NSWCATAP 7 (Pupuke) at [20] - [23] the Appeal Panel stated at [20] that the meaning of the expression is to be derived from case law. The Appeal Panel referred to the test set out in Pryor v Costa & Maroulis (Tenancy) [2005] NSWCTT 555 (Pryor), where the Tribunal's predecessor considered in detail the relevant authorities and concluded at [34]:

In summary, the occupier must have been granted, in consideration for value, the right to occupy premises, part of which may be exclusive, while the owner still retains, personally or by a servant, power to reprove all occupants who do not submit to the owner's will with regard to any matter touching upon the premises. The owner must remain the constant, conspicuous and prevailing authority over the premises on all matters.

66. The Appeal Panel considered the impact of the Boarding Houses Act 2012 (NSW) (which was introduced after Pryor) and concluded (at [23]) that the introduction of that legislation did not alter the test set out in Pryor, namely:

...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".

67. Mr Shapkin says he was not a boarder or lodger and relies on the decision of the Appeal Panel in Hurley v Hurley [2018] NSWCATAP 283 (Hurley) where the Appeal Panel said at [20]:

The relevant provision can only be section 8 (1) (c). Whether this applies would depend upon whether the appellant occupied the premises under an arrangement which could be characterised as board and lodging. In common terms board and lodging refers to the provision of both accommodation and food. There is simply no evidence provided by the appellant to that effect. Even if there was such evidence, it is arguable that once [the tenant's] mother died and he continued to stay in the property any arrangement of that kind in a practical sense would have come to an end.

68. It is not entirely clear from Mr Shapkin's submissions how the decision in Hurley assists his case but in any event, to the extent that Hurley is inconsistent with Pupuke, we prefer the decision in Pupuke. Our reasons for this include that in Pupuke the central issue in the appeal was the proper construction of s 8(1)(c) and the Appeal Panel gave considerable attention to the issue, including by discussion of relevant caselaw and examination of the impact of the Boarding Houses Act 2012 (NSW). Hurley contained no such discussion and indeed included only one sentence, without citation of any authority, in relation to the construction of the provision. For this reason, we prefer the approach taken in Pupuke, which is that an assessment of the whole of the arrangement between the parties is necessary to ascertain whether it is a boarder or lodger arrangement.

69. Moreover, in our view the Appeal Panel in Hurley erroneously focussed on the meaning of the term "board and lodging" (emphasis added). This is not the language used in s 8(1)(c) which requires consideration of whether a person "boards or lodges" (emphasis added) with another person. Having regard to the ordinary meaning of section 8(1)(c), a person may be a lodger without necessarily being a boarder. The Appeal Panel did not make this distinction in Hurley.

70. We would add that neither Pupuke nor Pryor addressed the difference between the meaning of the terms "boarder" and "lodger". Rather they focussed on the collective characteristics of arrangements under which a person "boards or lodges".

71. We pause to observe that "boarding" and "lodging" have slightly different meanings. Our understanding of the terminology is that "boarding" is in effect a subset of "lodging" where the lodger, in addition to receiving accommodation, generally receives food or meals as part of his or her living arrangements (See Noblett & Mansfield v Manley [1952] SASR 155 at [158]). This is consistent with the ordinary meaning of the term "board" as reflected in the following dictionary definitions:

"..to occupy a room in a dwelling, often with meals provided, in return for payment: Macquarie Dictionary (Macmillan Publishers Australia, 2022);..."

1. I am bound by the legal principles set out by the Appeal Panel in Shapkin and Pupuke, with regards to the determination when a person will be found to be a boarder or tenant and the proper construction of section 8(1)(c) of the RT Act.
2. The Appeal Panel in Shapkin stated at [81]:

Whilst a physical presence by the owner may be indicative of a lodging arrangement, 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] VCAT 483; (2016) 50 VR 74 at [36] (Croft J quoting McHugh J in Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 at [502] - [504]).

1. Consequently, it is necessary for me to consider whether the Agreement constitutes a residential tenancy agreement within the meaning of section 13 of the RT Act or whether it falls within section 8(1)(c) of the RT Act, thus exempt from the operation of the RT Act.
2. Given that the Agreement is in writing, the terms of the Agreement should be construed so as to give them the meaning intended by the parties. The intention of the parties is determined objectively, that is by the intentions of a reasonable person in the position of the party to the contract, taking into account all the relevant facts and circumstances, and not by reference to actual subjective intent: Codelfa Constructions Pty Ltd v State Rail Authority of NSW [1982] HCA 24, 149 CLR 337; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52, 219 CLR165

1. It is common ground between the parties that there is a written Agreement in relation to the applicant's occupation of a room in the House. It is the whole agreement and neither party has adduce any evidence to the contrary.
2. The features of the Agreement are:

(a) The Agreement is titled "Standard Occupancy Agreement for general boarding houses under the BH Act";

(b) The Company is described as a "proprietor";

(c) The applicant is described as a "resident";

(d) The room is described as "resident's room";

(e) The amounts payable by the applicant are described as "occupancy fee";

(f) The applicant provided her ex-husband's contact details to be used in an emergency;

(g) A security deposit of two week's occupancy fee is payable;

(h) The Agreement terms reflect the occupancy principles contained in Schedule 1 of the BH Act and each term makes reference to occupancy principles;

(i) Annexure 1 of the Agreement is the Occupancy principles that are contained in Schedule 1 of the BH Act;

(j) Schedule 2 of the Agreement 2 is the additional charges payable in addition to the occupancy fee; and

(k) The House Rules are attached to the back of the Agreement.

1. Based on the evidence, the following facts are not in dispute:

(a) The Company is the owner of the House and employed Ms Margetic as the manager of the House.

(b) On 13 November 2018, the Blue Mountains City Council granted development consent to the Company to construct and operate a single storey boarding house.

(c) On about 15 August 2019, the Blue Mountains City Council accepted the Plan of Management in accordance with the development consent.

(d) Shortly thereafter, the Blue Mountains City Council issued an occupation certificate and registered the House as a boarding house pursuant to the BH Act.

(e) The House is currently registered as a general registrable boarding house with the Department of Fair Trading.

(f) There are 6 individual rooms in the House and each room has its own kitchen and bathroom facilities. At the time, the applicant occupied Room 4 while the other rooms were occupied by other people.

(g) The common areas of the House are the laundry, covered walkways, rubbish bin area, carpark, and garden.

(h) The House had CCTV surveillance. This was monitored daily and used to see who entered and exited the House and when.

(i) There are no smoking signs and notices displayed around the common area of the House. These notices relate to rules about the use of the coin-operated laundry machines, rules about what items of clothing and linen that can be washed in the washing machines as well as evacuation plan in the event of an emergency. The notices were signed by Ms Margetic.

(j) The House rules are displayed in the common areas and additionally, they are affixed to the back of each door to the individual units in the House.

(k) The nameplate for the House displayed the name and contact information of Ms Margetic.

(l) On about 21 June 2024, the applicant and the Company entered into the Agreement for the occupation of Room 4 of the House.

(m) The applicant paid a fee of $350 per week.

(n) In addition to paying the fee for the their rooms, the residents share in the costs of utilities such as water, gas, and electricity as well as the internet access. The House also contained coin-operated laundry facilities to be used by the residents. There are instructions to the residents about how to use the coin-operated laundry machines.

(a) Each unit had its own bathroom and kitchen. There was a lock on the door to Room 4.

(b) She had the exclusive use of Room 4.

(c) In her copy of the Agreement, there is a handwritten notation at the bottom of the House Rules that 'Only 1 person permitted to live on these premises.'

(d) While there was staff present onsite, the Company does not reside on the premises.

1. The Company's position was that the Agreement between the parties was that of a boarding house agreement. In addition to the above uncontested evidence referred to in paragraph 37, the Company's evidence include the following:

(a) The Company's copy of the Agreement did not have any handwritten notations.

(b) Ms Margetic was the resident manager of the House and was on site.

(c) Ms Margetic oversees the day-to-day business of running a boarding house on behalf of the Company. This includes:

(i) ensuring the rules are complied with by the residents;

(ii) interacting with residents;

(iii) address the resident's complaints and concerns;

(iv) attending to any issues relating to House;

(v) cleaning the room once a boarder leaves; and

(vi) ensuring the common areas are kept reasonably neat and tidy.

1. The respondents rely on a statement from Ms Jane Margarets dated 22 October 2024 which is contained on page 109 of Exhibit R1. The applicant did not request Ms Margarets be made available for cross-examination. While the statement was intended to be used as a character reference in relation to the applicant's claim for compensation, I note that Ms Margarets states:

(a) She lived at the House for 5 years

(b) The House consists of 6 'bed-sitters' which she understood to be a boarding house.

(c) The common areas (being the laundry, covered walkway, rubbish bins, shrubberies, etc) were well maintained by the management.

(d) There are rules on the back of the front doors of each room and on the walls around the House.

(e) Each resident pays for usage of utilities, including Wi-Fi

1. Based on her evidence, the applicant's submission was that the Agreement is a residential tenancy agreement as defined under the RT Act as her Room contained a bathroom and kitchen and she had the exclusive use of it. She further submitted that a lodger or a boarder would only occupy a room and share other facilities such as kitchen and bathroom. Additionally, the applicant submits that the Company, being the owner, does not reside onsite and therefore does not have possession of the site.
2. While I accept the uncontested evidence that the room contains a kitchen and a bathroom, I do not consider that this fact alone is enough to persuade me that the Agreement is a residential tenancy agreement. The reason for this is that the definition of 'boarding premises' in section 4 of the BH Act include a premises that have rooms (some or all of which may have private kitchen and bathroom facilities) that accommodate one or more boarders or lodgers.
3. Whilst physical possession in unnecessary to remain in possession and retain quality as master of the house, I find that there is uncontested evidence that the Company employed Ms Margetic as a manager of the House and remained physical possession. Ms Margetic was present at the House and enforced the House rules as well as collecting rent, emptying the coin bins in the coin operated laundry machines, and attending to issues that the residents have with their Rooms.
4. A prominent feature of Ms Margetic's role as a manager is that she had daily interactions with the residents and attend to their complaints or requests. She has good rapport with some of the residents of the House and had personally assisted some of them with their personal issues. In the respondent's evidence, there is a letter from a former resident of the House who stated that Ms Margetic had assisted her when she had recently given birth by putting the resident and her family in a more suitable premises managed by Ms Margetic and helped move her belongings from the House to her new abode. Ms Margetic had also assisted with another resident's inability to pay the occupancy fee by allowing the resident to pay a lesser amount in exchange for odd jobs around the House such as yard work. Additionally, Ms Margetic was the first point of contact for any complaints that a resident may have, and she ensured that no resident disturbs the peace and quiet enjoyment of others living in the House. If a resident does not comply with the House rules or was unruly, Ms Margetic would issue a warning and if the offending conduct continued, she would then evict the troublesome resident. This was referred to in letters written by some current and former residents of the House in the respondent's evidence. Furthermore, Ms Margetic ensured that any of the resident's visitor do not stay in the House overnight and she would check and monitor the CCTV daily. These features are not simply present in a usual tenancy agreement.
5. I find that while each resident has exclusive control over their assigned room in the House, the Company, through Ms Margetic, has general control and dominion over the whole of the House.
6. The applicant also challenges the validity of the Agreement based on a unilateral mistake, being that the applicant thought that she was entering into a residential tenancy agreement instead of a boarding house occupation agreement.
7. In order to have the Agreement declared void, there needs to be evidence that there was no true meeting of the minds. Alternatively, if there was a consensus reached between the parties, the contract may be voidable due to an unconscionable dealing by one party.
8. Other than the signed Agreement, either party did not adduce any evidence of what occurred at the time the Agreement was signed. From the evidence adduced, there was an agreement between the parties that the applicant would occupy a room in the House in return for payment to the Company. The applicant did not adduce any evidence that she did not understand nor was she under a disability that affected her ability to understand the effects of the Agreement she was entering into at the time. While I accept that the applicant was suffering from anxiety and depression, there is no evidence that these mental issues had any effect on her capacity to enter a contract nor affect her understanding of the terms of the Agreement and the document itself. A copy of the Agreement was provided to the applicant to review and sign. Additionally, there is no evidence that the respondents were aware of the applicant's disabilities or did anything to misrepresent to her that the Agreement was a residential tenancy agreement instead of an occupancy agreement or took advantage of the applicant's disabilities.
9. A plain reading of the Agreement would have alerted a reasonable person, in the shoes of the applicant, to the nature of the arrangement and the terms that the Company would provide accommodation. I find that the applicant was aware of the type of residential agreement that she was entering, being that of a boarding house occupation agreement and understood the terms of the Agreement. I reach this conclusion based on the evidence above and the high level of involvement in the activities of the House as demonstrated by the Company which showed that the Company, through Ms Margetic, had sufficient 'mastery and control' over the House, in the manner described in Pupuke and Pryor, such that on the objective evidence the agreement contemplated and agreed upon by the parties fell within the exception in section 8(1)(c) of the RT act.
10. In considering the findings above, I am of the view that the Agreement does not constitute a residential tenancy agreement within the meaning of the RT Act and it is "an agreement under which a person boards or lodges with another person." Having come to that view, the applicant is ipso facto not a tenant within the meaning of the RT Act.
11. I declare that pursuant to section 11 of the RT Act that the Agreement is not a residential tenancy agreement to which the RT Act applies. Accordingly, the Tribunal does not have jurisdiction to determine the remainder of the application.
12. Accordingly, it is unnecessary for me to consider the issue raised in the Request, as the application has been dismissed on the basis that the Tribunal lacks jurisdiction, rendering any determination on that issue redundant.
13. In relation to the applicant's claim for compensation against Ms Margetic for personal injury, I also dismiss that claim on the basis that the Tribunal does not have jurisdiction to determine personal injury claims.

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.