Chen v Chen [2026] NSWCATCD 12;

1. There was no dispute as between the parties regarding the terms of the Agreement which had been reduced to writing and signed by the parties on 2 July 2025. Each party proffered a copy of the Agreement in the materials which they tendered to the Tribunal.
2. The Agreement was titled "Room Rental Agreement" and described the respondent as "Landlord/Principal Tenant" and the applicant as "Tenant". Set out below are the substantial terms of the Agreement (the mode of expression in the original has been retained without amendment):

Terms

Length of Agreement ... From 07/07/2025 to 15/01/2026

Rent

$450 x 4 = $1800 payable fortnightly. Every 4 weeks

Rent includes utilities of gas, water, and internet, electricity (except for the use of air conditioner, heater and clothes dryer).

Deposits

Security Deposit: Amount $1800

Key Deposit: Amount $200/person (if any lose or damage will not be refundable)

The security deposit may be used for the purpose of repairing damage for which the Tenant is responsible (beyond normal wear and tear), such as repair for damage of household electrical appliances, cleaning, or paying unpaid rent or utilities. The Landlord and the Tenant shall conduct a pre-move out inspection of the rental BEFORE the Tenant moves out at which time the Landlord shall inform the Tenant of needed repairs. The Tenant shall have the right to make any repairs identified at the pre-move out inspection at his or her expense before the move out date without deduction from the security deposit.

Quiet Enjoyment

Landlord covenants that on paying the rent and performing the covenants herein contained, the Tenant shall peacefully and quietly have, hold, and enjoy the premises for the agreed term.

No smoke and pet requirement

All parties agree smoking and keeping pet are both not allowed in this premises.

Keeping clean and tide

Tenants agree and have responsibility to keep the using area including the private room and private bathroom, public areas including kitchen, bathroom and laundry clean and tidy.

No party and no bringing other people sleep over.

Tenants agree, at anytime, not bringing any people to premises. Otherwise, $300 fine will be applied.

Less cooking.

Tenants agree less cooking (1 meal per day), no deep frying or hot chilli cooking, no greasy or heavy flavour or taste of food cooked in the kitchen. Tenants agree to keep the kitchen area clean and tidy every single time after use, no dishes to be left in the sink. Any breaching $100 fine will be applied.

Notice

Tenant, with 30 days written notice to the other party, terminate this Agreement.

1. Also relevant to the jurisdictional issue is the following evidence of the applicant as to what the applicant says took place shortly after he received the key on 2 July 2025:

I discovered multiple serious issues after signing, such as new rules not being disclosed earlier or stated in the agreement (e.g., laundry only once a week, the actual number of occupants being higher than represented, both the landlord and his spouse also living in the premises, and the rented room having no independent lock, raising safety and privacy concerns).

1. The response from the respondents to that evidence by the applicant does not dispute the substance of the matters complained of.

1. A number of provisions of the RT Act are relevant to the determination of the present issue.
2. By s 6 of the RT Act, the RT Act "applies to residential tenancy agreements in respect of residential premises".
3. Section 13 of the RT Act defines 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.

1. Relevantly, s 8(1)(c) of the RT Act provides that the RT Act does not apply to "an agreement under which a person boards or lodges with another person".
2. Section 3 of the RT Act defines "residential premises" to mean "any premises or part of premises (including any land occupied with the premises) used or intended to be used as a residence". As the note to s 13 provides, s 7 lists premises to which the Act does not apply. Nothing set out in s 7 is relevant to the present application.
3. The concept of "boards or lodges" present in s 8(1)(c) of the RT Act is not the subject of definition in the Act or subordinate legislation. However, as two recent decisions of the Tribunal have found (being Breakspear v Margetic and Citegram Development Pty Ltd [2025] NSWCATCD 30 and Ullah v Halabi [2025] NSWCATCD 139), assistance can be found in earlier case law, including Pryor v Costa & Maroulis (tenancy) [2005] NSWCTT 55 at [32]-[34]:

32. The term lodger is not defined in the 1987 Act and its meaning is to be derived from case law. ....

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. As noted in each of Breakspear and Ullah, following the decision in Pryor, the Boarding Houses Act 2012 (NSW) (BH Act) was introduced to establish an appropriate regulatory framework for registerable boarding houses. Relevant provisions are set out in Breakspear and Ullah and are not repeated here (save where specifically referred to in the Tribunal's consideration below). What is of critical import is the conclusion reached by the Appeal Panel in Pupuke v Stratford [2016] NSWCATAP 7 at [23] (and echoed in each of Breakspear and Ullah):

However, in our 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".

1. Regard must also be had to the decision of the Appeal Panel in Shapkin v The University of Sydney [2023] NSWCATAP 2 where specific consideration was given to the construction and application of s 8(1)(c) of the RT Act and, after considering a number of authorities, including Pupuke and Construction Forestry Maritime Mining and Energy Union v Personnel Contracting Pty Ltd (2022) 27 CLR 165 the following summary given:

(1) 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 him or herself the general control and dominion over the whole, although the owner may have agreed to give to the other exclusive enjoyment of the occupation of part: Pupuke at [23].

(2) The lack of provision of food or meals is not determinative of the issue although a boarder, as opposed to a lodger, is more likely to be provided with food or meals as part of the living arrangement.

(3) Labels are not determinative of, nor relevant to, the process of characterising the agreement. Determination of the character of the parties' relationship requires an evaluation of the parties' rights and obligations: Personnel at [63] - [64].

(4) A physical presence is not a requirement of a lodging arrangement_._ 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) 213 CLR 1 at [502] - [504]).

(5) If the parties' rights and duties are comprehensively committed to a written contract, the legal rights and obligations established by the written contract will determine the character of the relationship between the parties: Personnel at [43]-[44]. The exception to this will be where the validity of the written contract is challenged as a sham, or where there is an assertion that the terms of the contract have been subsequently varied or waived or are the subject of an estoppel: Personnel at [43].

(6) An agreement may be a lodger arrangement even if the lodger has exclusive enjoyment over part of the premises. What is relevant is whether the owner reserves to him or herself the "general control and dominion" over the whole of the premises, even if the other person has exclusive enjoyment of part of the premises: Pupuke at [23].

1. As is clear from the principles set out above, the fact that the Agreement refers to the applicant by the label "tenant" is not "determinative of, or even relevant to" the proper characterisation of the relationship between the applicant and the respondent: Personnel at [63].
2. This is a case where the parties' rights and duties were comprehensively committed to a written contract, being the Agreement. There is no allegation that such written contract is a sham or that the terms of that contract were subsequently varied or waived.
3. It is plain on the terms of the Agreement that the applicant would have exclusive use of a room and share facilities "including kitchen, bathroom and laundry" with other residents. There is an indication in the terms of the Agreement (being the phrase "private bathroom" under the heading "Keeping clean and tide") that the room included a bathroom for the exclusive use of the applicant. Even if that is accepted, it does not necessarily assist the applicant in establishing that the arrangement is a tenancy. The definition of "boarding premises" in s 4 of the BH Act include premises that have rooms (some or all of which may have private kitchen and bathroom facilities) that accommodate one or more boarders or lodgers: see Breakspear at [43].
4. Likewise, the covenant as to quiet enjoyment contained in the Agreement is not an incontestable indicium of tenancy. A resident's entitlement to quiet enjoyment of the relevant premises is one of the "occupancy principles" set out in Schedule 1 to the BH Act.
5. The evidence is clear that the respondent resides at the Premises. That was one of the matters that caused immediate difficulty as between the parties. To that fact must be added the terms of the Agreement. Although the terms regarding smoking, pets and general cleanliness and tidiness are not out of the common way of a residential tenancy agreement, the term regarding not bringing any people to the premises and the term limiting the applicant to cooking once per day and specifying the types of cooking are matters not present in a typical residential tenancy agreement (especially the proposed imposition of substantial "fines"). To that may be added the "new term" at [11] above requiring "laundry only once a week".
6. Having regard to the terms of the Agreement, the Tribunal is comfortably satisfied that the present was an arrangement whereby the respondent as owner remained in possession (in this case physical possession) and retained his quality as "master of the house", reserving to himself the general control and dominion over the whole, although agreeing to give to the applicant exclusive enjoyment of the occupation of part.
7. The Tribunal finds that the applicant agreed to occupy the Premises pursuant to an agreement under which he would board or lodge at the Premises and that the Agreement signed by the parties is not a residential tenancy agreement. The Tribunal will make a declaration under s 11 of the RT Act. The application will otherwise be dismissed because it seeks relief under the RT Act and the RT Act not having application to the Agreement, the Tribunal does not have jurisdiction to determine the application.

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.