S Westgarth, Deputy PresidentR Titterton OAM, Senior Member
Catchwords
Appeal – whether the agreement between the parties is a residential
tenancy agreement regulated by the Residential Tenancies
Act or an occupancy
agreement regulated by the Boarding House Act – consideration of
Source
Original judgment source is linked above.
Catchwords
Appeal – whether the agreement between the parties is a residentialtenancy agreement regulated by the Residential TenanciesAct or an occupancyagreement regulated by the Boarding House Act – consideration ofss 8(1)(c) and 13 of the Residential TenanciesAct – statutoryconstruction-whether time to lodge the appeal should be extended given that the
The issue in this appeal is whether the agreement between the parties dated 16 April 2025 is a residential tenancy agreement and thereby regulated by the Residential Tenancies Act2010 (NSW) (the RT Act), or an occupancy agreement regulated by the Boarding Houses Act2012 (NSW) (the BH Act). The parties are in dispute because the Appellant locked the Respondent out of the premises occupied by the Respondent by reason of the alleged non-payment of rent or occupancy fees.
The Respondent lodged an application in the Tribunal contending that she had a residential tenancy agreement, whereas the Appellant contended that the agreement was not a residential tenancy agreement but was an agreement under the BH Act. If the former, the remedies available to the Tribunal are different from those available to the Tribunal under the BH Act.
The decision under appeal (the Decision) was dated 8 July 2025 (and published on 11 July 2025), and the conclusion of the Tribunal was that the agreement between the parties was a residential tenancy agreement. The Tribunal held that it had jurisdiction to consider the application and the Tribunal made orders favourable to the Respondent. A more detailed description of the application, the dispute between the parties and the Tribunal's Decision is set out later in these reasons.
The proceedings before the Tribunal commenced with the lodgment of a Tenancy and Social Housing Application on 2 July 2025, by which the Respondent to this appeal applied for a number of orders against the respondent (now the Appellant).
The background circumstances and findings of fact as taken from the Decision are summarised in the following paragraphs.
On 30 June 2025, the Respondent was locked out of residential premises by the Appellant. She made an application to the tribunal for orders concerning her personal property and for compensation. The Respondent's position was that she was a tenant under a Residential Tenancy Agreement and that the lockout interfered with her quiet enjoyment entitling her to compensation. The Appellant contended that the agreement was a boarding house agreement, that due notice had been given and that the Respondent's goods could be collected by her.
[14]
The Appellant lodged a Notice of Appeal on 8 August 2025 and on 5 September lodged Amended Grounds of Appeal. The Notice of Appeal was filed out of time. We will return to this issue later in these reasons. The grounds of appeal as recorded in the amended grounds of appeal are as follows:
[15]
(1) The Tribunal erred on a question of law by failing to apply an objective determination of the meaning and effect of the contract as at the time it was entered into?
(2) Alternatively to 1, the Tribunal erred on a question of law by asking the wrong question, namely how the conduct subsequent to entry into the contract compared with the facts in Shapkin.
(3) (2A) The Tribunal erred on a question of law by considering subsequent conduct to interpret the contract?
(4) The Tribunal erred by making findings of fact, in the absence of evidence of those facts.
(5) The Tribunal erred by making certain factual findings, and that such findings were not fair and equitable or were against the weight of evidence.
[16]
(1) The time for making of the appeal be extended to the date of filing, namely 8 August 2025.
(2) The appeal be allowed.
(3) Orders 6 (payment of $5,000) and 8 (the hearing of all other matters be adjourned to a subsequent date) be set aside.
(4) The Appeal Panel hear the matter de novo or remit the matter for rehearing.
(5) That fresh evidence or evidence in addition to the evidence received by the Tribunal at first instance be given in any new hearing.
(6) Such other orders as the Appeal Panel deems fit.
[17]
The Respondent did not file a Reply to the Notice of Appeal and nor did she file written submissions. However, the Respondent did appear at the hearing of the appeal and subsequently, we will make reference to her oral submissions.
[18]
The written and oral submissions of the Appellant's counsel are summarised in the following paragraphs.
The Appellant sought leave for the appeal to be filed out of time and for that purpose sought an order from the Appeal Panel that time be extended. The Notice of Appeal was lodged 14 days after the time required by r 25(b) of the Civil & Administrative Tribunal Rules 2014 (NSW) (the Rules). The Appellant's explanation for the delay, according to the affidavit dated 8 August 2025 lodged by the solicitor for the Appellant, was that the principal solicitor responsible for the Appellant's litigation was on leave and the author of the affidavit stated that he was under the misapprehension that he had 28 days to appeal.
The Appellant submitted that the solicitor's oversight should not be visited upon its client: Stollznow v Calvert[1980] 2 NSWLR 749 and Andresakis and Skouteris v Alesus Holdings Pty Ltd[2006] NSWCA 294; (2006) 68 NSWLR 507.
The Appellant submitted that the 14 day delay has not created prejudice to the Respondent. The substantive matter has not been finally determined including the further hearing contemplated by order 8. However, since then the proceedings at first instance have been listed for conciliation on more than one occasion. Counsel also informed us that the Respondent has left the premises.
Ground 1: the Appellant submitted that the Tribunal failed to apply an objective determination of the meaning and effect of the agreement between the parties as at the time it was entered into.
The Appellant submitted that the primary material for interpretation is the written agreement. The immediate question for consideration is whether the Tribunal was permitted to look at extrinsic material. In Codelfa Construction Pty Ltd v State Rail Authority of New South Wales(1982) 149 CLR 337 the court stated that the "true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning".
[19]
(1) There was no range of services of substance.
(2) There was no furniture.
(3) The Appellant had no discretion as to which room to allocate for the Respondent.
(4) There was no house manager.
(5) The reservation as to access is markedly weaker than the situation in Shapkin.
[20]
Ground 4: the Appellant submitted that the Tribunal erred in making certain factual findings. For this purpose, the Appellant seeks to rely on the affidavit of Daria Chuproff dated 19 September 2025. Ms Chuproff is the property manager in respect of the subject property and her affidavit is to the effect that she did not submit to the Tribunal evidence that she now wishes to submit. We interpose here to say that in our view the affidavit should not be admitted for the purposes of deciding this appeal. The Appellant made a forensic decision to lodge certain evidence and not to consider lodging other evidence. Fresh evidence should generally not be permitted in an appeal unless it was not reasonably available at the first instance hearing. This evidence was available and could have been incorporated into evidence lodged by the Appellant in the proceedings at first instance. Accordingly, we do not propose to consider Ms Chuproff's affidavit.
The Appellant's submissions drew attention to s 29 of the BH Act. That section provides that a "standard form of occupancy agreement" may be published in the Gazette. The Appellant submitted that the agreement between the parties was in conformity with the gazetted agreement.
[21]
The Respondent made submissions at the hearing of the appeal. She acknowledged signing the agreement but stated that she was told that it was a tenancy agreement. She acknowledged that such assertion had not been made to the Tribunal at first instance.
The Respondent also stated that she was at a disadvantage in seeking to respond to the appeal without the assistance of a lawyer and wanted further time to obtain such assistance.
[22]
The Appellant submitted that the assertion that the Respondent was informed that she had been given an agreement under the RT Act was not raised below. We were taken to a copy of the transcript of the hearing at first instance. It reveals that the Respondent was represented by an officer of a tenants' advice and advocacy service. It is not necessary to determine whether the Respondent's assertion was or was not raised at first instance.
[23]
Directions made at conclusion of hearing of appeal
[24]
At the conclusion of the hearing of the appeal we reserved our decision and also gave leave to the Respondent to seek to relist the appeal should she engage a lawyer and provided that such an application to relist is made by a lawyer for the Respondent before Friday 22 December 2025. At the subsequent request of the Respondent the time to make such an application was extended to 23 January 2026. Such an application has not been lodged either by the Respondent or by a lawyer representing the Respondent seeking to make such an application within the initial deadline of 22 December 2025 or since then.
[25]
The first issue to be considered is whether time should be extended for the late lodgment of the appeal. The issues that are to be addressed in considering such an application were set out in the Appeal Panel decision in Jackson v NSW Land and Housing Corporation[2014] NSWCATAP 22. In that case, the Appeal Panel considered that there were three relevant considerations. The first consideration is the length of the delay. Here, the delay was relatively short (14 days) but, nevertheless, double the time permitted by the Rules. The second consideration is the reason for the delay, and here the reason was the fault of the solicitor in mistakenly thinking that the applicable time was 28 days rather than 14 days. The next consideration is the extent of any prejudice suffered by the Respondent. In this case, there is little or no prejudice to the Respondent. The Respondent has left the premises and, in any event, the proceedings were not finally determined but have been remitted for further hearing on the balance of issues not already decided. The final consideration is the Appellant's prospects of success - that is to say whether the Appellant has a fairly arguable case.
This last consideration is, in the circumstances of this case, significant. For the reasons that are explained in the following paragraphs we are of the opinion that the Tribunal erred in its construction of the terms and effect of the agreement between the parties. The effect of the error not only has consequences for the parties to these proceedings, but because, as we understand it, the same form of agreement is used between the Appellant and other parties, the consequences for the Appellant concerning the correct construction of the terms of the agreement are not limited to the Appellant's relationship to the Respondent.
In the circumstances, it is not necessary for us to consider whether the fault of the solicitor should be sheeted home to the Appellant. Rather, the dominant consideration pointing to time being extended is the fact that the Appellant has, in our view, suffered an injustice with consequences that go beyond the dispute between the parties to these proceedings.
Accordingly, we propose to extend time and will make an order to that effect.
The key finding of the Tribunal at first instance was that the agreement between the parties was one that falls within the terms of s 13(1) of the RT Act and was not an agreement to which s 8(1)(c) of the RT Act applies. It is helpful to set out those two sections. See below.
[26]
8 Agreements to which Act does not apply
(1) This Act does not apply to the following agreements--
(bb) short-term rental accommodation arrangements, within the meaning of section 54A of the Fair Trading Act 1987, under which the person given the right to occupy the residential premises to which the arrangement relates does not occupy the premises as the person's principal place of residence,
(c) an agreement under which a person boards or lodges with another person,
(d) an agreement under which a person resides in refuge or crisis accommodation of a kind prescribed by the regulations,
(f) an agreement for the sale of land that confers a right to occupy residential premises on a party to the agreement,
(g) an agreement that arises under a term of a mortgage and confers a right to occupy residential premises on a party to the mortgage,
(i) an agreement that arises under a company title scheme under which a group of adjoining or adjacent premises is owned or leased by a corporation each of whose shareholders has, by virtue of his or her shares, an exclusive right to occupy one or more of the residential premises,
[27]
It can be seen that 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 purposes of use as a residence, but such an agreement may not necessarily grant a right of exclusive occupation.
It can also be seen (from s 8) that the RT Act does not apply to an agreement under which a "person boards or lodges with another person".
It is also relevant to turn to a consideration of the BH Act. Section 3 of that Act provides that the object of the act is to "establish an appropriate regulatory framework for the delivery of quality services to residents of registrable boarding houses, and for the promotion and protection of the well-being of such residents". The BH Act provides for a registration system for registrable boarding house and for the provision of occupancy principles to be observed with respect to the provision of accommodation. We are informed that the subject premises were and are within a registered boarding house.
Section 27 of the BH Act defines an "occupancy agreement" in relation to a registrable boarding house to be a written or unwritten agreement "that 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 ... under which the resident is granted the right to occupy, for a fee or reward, one more rooms in the boarding house as a resident of the house, but does not include a rental agreement between a proprietor and resident of a registrable boarding house (or any persons acting on their behalf)".
(1) The agreement is called "Standard Occupancy Agreement".
(2) It provides an address as 8/[then follows a Street number and street name and suburb].
(3) The Appellant is described as the "proprietor" and the Respondent as the "resident".
(4) The agreement sets out a number of obligations and in each case refers to an occupancy principle. For example, it states that by reference to occupancy principle 1 the proprietor agrees to provide and maintain the premises so that they are in a reasonable state of repair, are reasonably clean and reasonably secure.
(5) There is reference to occupancy principle 2 namely that the resident agrees to comply with the "House Rules" of the boarding house which are listed on the attached "Statement of House Rules". House Rules were not attached to the copy of the agreement provided to us.
(6) By reference to occupancy principle 4, the proprietor agrees to take all reasonable steps to enable the resident's quiet enjoyment of the premises.
(7) By reference to occupancy principle 5 the proprietor may inspect the boarding house common areas at any reasonable time. Repairs, cleaning and maintenance of common areas can be carried out at reasonable times.
(8) Also by reference to occupancy principle 5, the agreement states that the proprietor may enter the resident's room, at a reasonable time, with reasonable notice and on reasonable grounds. Agreed access and notice periods are set out below. Then follows a table which provides for different notice periods to be given for access, depending upon the reason for access. In an emergency the proprietor has immediate access. For the purposes of cleaning the premises or carrying out repairs or to show the room to a prospective resident the notice period is 24 hours.
(9) By reference to occupancy principleoccupa 6 the resident is entitled to four weeks written notice of any increase in the occupancy fee.
(10) By reference to occupancy principle 7 the proprietor may charge an additional amount for utilities if the resident is made aware of this on signing the agreement. There is an annexure to the agreement which details how charges are calculated.
(11) By reference to occupancy principle 8 a security deposit is payable to the proprietor as well as a cleaning deposit. These are repaid after the end of the agreement.
[29]
In our view, and adopting the same approach as the Appeal Panel in Shapkin, the occupancy agreement between the Appellant and the Respondent demonstrates that the Appellant retained sufficient mastery and control over the premises such that the arrangement between the Appellant and the Respondent falls within the exception in s 8(1)(c). The particular features which lead us to this conclusion are:
[30]
(1) Occupancy principle 5 enables the proprietor to enter the resident's room "at a reasonable time with reasonable notice and on reasonable grounds" with the suggested notice in most cases being 24 hours. These provisions are inconsistent with s 35 of the RT Act which enables a landlord to enter residential premises without consent and without notice only in circumstances involving an emergency or to carry out urgent repairs or in other limited circumstances. Occupancy principle 5 is not so limited.
(2) Occupancy principle 6 permits the proprietor to increase the occupancy fee on four weeks' written notice. This is inconsistent with s 41 of the RT Act which makes provision for rent under a residential tenancy agreement to be increased only in accordance with the provisions of that section. One such provision is that a notice period of at least 60 days must be given and further that there cannot be a rent increase within the first 12 months after the start of the tenancy.
(3) Occupancy principles 9 and 10 deal with termination of the occupancy agreement. The agreement may be terminated and the resident evicted upon reasonable written notice. Such notice may be immediate or a number of days depending upon the reason for the termination. In the case where a "no grounds" termination is made the period of notice is two weeks. These provisions are in stark contrast to the termination of a residential tenancy Tribunal as regulated by s 81 of the RT Act. Excluding a case where a tenant under the RT Act gives vacant possession the position is that a residential tenancy agreement terminates when the Tribunal makes an order terminating the agreement. Usually such an order can only be made after appropriate notice has been given by the landlord. Clearly the occupancy agreement puts the proprietor under that agreement in a much stronger and more flexible position to terminate the occupancy agreement, without the intervention of the Tribunal, than is the position under a Residential Tenancy Agreement regulated by the RT Act.
[31]
In addition, taken as a whole, the agreement between the Appellant and the Respondent contains provisions and features in conformity with the provisions of the BH Act and does not contain provisions of features in conformity with the RT Act. These provisions give to the Appellant a level of mastery and control over the premises that is much greater than permitted to a landlord under a residential tenancy agreement.
Our view is that the agreement between the Appellant and the Respondent was and is an agreement falling within the exception contained in s 8(1)(c) of the RT Act and is not an agreement under s 13 of the RT Act. Accordingly, the Tribunal has no jurisdiction to determine the dispute between the parties pursuant to the rights and obligations contained in the RT Act.
With respect to ground 1, we agree with the Appellant's submissions that the Tribunal erred by failing to apply an objective determination of the meaning and effect of the agreement between the parties. In this case, there was no basis, in our respectful view, to consider circumstances surrounding the agreement. The agreement is not ambiguous, and the respective rights and obligations of the parties are capable of being construed by reference to its terms. The orthodox approach to statutory construction is to determine the objective intention of the parties. The Decision took a different approach and specifically stated that an objective interpretation of the agreement was not relevant to the Tribunal's task of determining whether the agreement falls within s 8(1)(c) of the RT Act. Our view coincides with the submissions of the Appellant - summarised earlier. Accordingly, ground 1 is upheld.
In our view, it follows that the other grounds do not require consideration. Ground 2 was expressed as an alternative to ground 1 and as ground 1 has been upheld, ground 2 becomes irrelevant. Ground 2A concerned the Tribunal's reference to the conduct of the parties subsequent to entry into the agreement. In the circumstances we agree with the Appellant that the Tribunal erred by considering evidence concerning conduct after the agreement was entered into. Although, given our conclusion that ground 1 should be upheld, it is not necessary to decide ground 2A, we nevertheless state that ground 2A is upheld.
Grounds 3 and 4 concern findings of fact. These grounds do not require consideration given our conclusion with respect to ground 1.
[32]
(1) Time for lodgment of the appeal is extended to 8 August 2025.
(2) The appeal is upheld.
(3) Orders 6 and 8 made on 8 July 2025 in the proceedings at first instance are set aside.
(4) The proceedings at first instance are remitted to the Consumer and Commercial Division of the Tribunal for rehearing.
(5) On remittal the parties may adduce evidence in addition to the evidence already adduced in the proceedings at first instance.
(6) The Appellant is free to instruct its solicitors to return any money held in trust paid as a consequence of direction 2 made in these appeal proceedings on 22 August 2025.
(7) If the Appellant seeks costs of the appeal, the Appellant should file and serve an application for costs and evidence in support within 14 days of the date of these orders.
(8) If the Respondent opposes an order for costs of the appeal, the Respondent should file and serve submissions and evidence in response within 14 days thereafter.
(9) The submissions on costs should include a submission as to whether the Appeal Panel may determine costs on the papers and thereby dispense with a further hearing.
[33]
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.
[34]
04 March 2026 - Representation: Counsel: P Lin (Appellant) amended
Parties
Applicant/Plaintiff:
Grove 888 Pty Ltd
Respondent/Defendant:
Bholon [2026] NSWCATAP 62;
Legislation Cited (9)
Administrative Tribunal Rules 2014(NSW)
Houses Act 2012
Tenant (Amendment) Act 1948
Tenancies Act 2010
Parks (Long-term Casual Occupation) Act 2002
Villages Act 1999
(Land Lease) Communities Act 2013
Trading Act 1987
Land Management Act 2016
Cases Cited (3)
(2006) 68 NSWLR 507
(1982) 149 CLR 337
(2004) 219 CLR 165
The Tribunal identified the question for its consideration as whether the Tribunal had power under the RT Act to hear and determine the application. The Tribunal stated that under the RT Act 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: s 13(1) of the RT Act.
The Tribunal then considered s 8 of the RT Act. That section describes agreements to which the RT Act does not apply and s 8(1)(c) describes one such agreement being an agreement under which a person boards or lodges with another person. The Tribunal stated that an agreement under which a person boards or lodges with another person must "have the quality and effect that the other person remains in possession and retains their quality as master of the house, with the agreement reserving to the other person the general control and dominion over the whole while giving to the first person exclusive enjoyment of the occupation of part".
The Tribunal then considered the agreement to which the parties claim to be bound. The Tribunal described the agreement as a "standard occupancy agreement for general boarding houses" and then stated that the "issue is whether the agreement is a recognition by the parties that general control and dominion over a house is reserved by the respondent [ie now the Appellant]".
The Tribunal commenced by referring to whether the objective intention of the parties was relevant to determining whether the agreement falls within s8(1)(c) of the RT Act and decided that the intention of the parties, whether objectively or subjectively ascertained "says little or nothing about the Tribunal's task of determining whether the agreement falls within s 8(1)(c )".
The Tribunal considered "what was and was not reserved" by considering the features that were identified as relevant in the Appeal Panel decision of Shapkin v the University of Sydney[2023] NSWCATAP 2.
The first feature of Shapkin concerned the fact that the agreement in that case provided for a range of other services (other than food or meals which were not provided) to be provided to Mr Shapkin in addition to his right to lodge in a private bedroom and use common areas. These included provision of furniture, utilities and routine cleaning. The Tribunal found that, unlike the situation in Shapkin, here there were no common areas of substance, there was no range of services of substance, there was no furniture, and water usage was charged by meter reads. There was no provision for routine cleaning.
The Tribunal referred to the finding in Shapkin that the agreement in that case contained a number of restrictions on Mr Shapkin's use and enjoyment of the premises and gave the University significant control and authority over the premises. For example, Mr Shapkin was precluded from adding additional furniture and other items. The Tribunal found that, unlike the position in Shapkin here the Respondent was not precluded from adding items without approval.
Additionally, in Shapkin the agreement provided that the location of the room allocated to the resident and to other residents is within the absolute discretion of the University. Here, the Tribunal found that the agreement between the parties contained no such discretion given to the Appellant. Rather, the parties had agreed on premises with a singular address: "8/18 [street name] Street [suburb].
In Shapkin, the University was entitled to access Mr Shapkin's room if it considered it reasonably necessary. The Tribunal found that in the case of the agreement between the Appellant and the Respondent, "the Respondent could only enter the Appellant's room, at a reasonable time, with reasonable notice and on reasonable grounds. Agreed access and notice periods are set out below...". The Tribunal described this as a "markedly weaker reservation than that in Shapkin."
The Tribunal stated that in Shapkin the University agreed to "endeavour to give the Resident reasonable notice" of its intention to access the room" but was obliged to give such notice. In the case of the agreement between the Appellant and Respondent the Respondent was "not only entitled to notice but was entitled to notice as agreed".
The Tribunal found that in Shapkin the parties had agreed to "a mastery and dominion" to the extent that the occupant accepted terms concerning "regulating guests, visitors and gatherings, including by requiring guests and visitors to be recorded in a guests register, requiring visitors to vacate the residence by certain times, requiring the resident to comply at all times with any "Party Policy", prohibiting certain social gatherings during exam periods and preventing guests from using the laundry facilities". In the case of the agreement between the Appellant and Respondent the Tribunal found that there was "no or no material recognition of any mastery or dominion" to the extent described in Shapkin. The Tribunal found that there was no common area for social gatherings and that the Respondent had laundry facilities in her premises.
The Tribunal made reference to the Appellant's submission that the house in which the Respondent occupied a room had been registered under the BH Act and further that the agreement between the parties incorporated "Occupancy Principles" being principles that form part of the BH Act. The Tribunal referred to the fact that the agreement provided that the resident agrees to comply with the "House Rules of the boarding house". The Tribunal found that there were no house rules "in the usual sense of that expression". The Tribunal found that the agreement "as a whole has no or no material restriction on the occupant's mode of socialising or of receiving visitors and no or no material guidance on how to enjoy common areas, the latter possibly because, as the Tribunal found, there is no common area of substance beyond the entry, the corridors and the means of moving up and down a building with more than one floor."
The Tribunal went on to consider other features of the agreement which are described as not assisting in determining whether mastery and control had been reserved by the Appellant.
The Tribunal then turned its attention to the provisions concerning termination of the Respondent's occupation. The Tribunal set out provisions of the agreement to the effect that the resident must not be evicted without reasonable notice and that the proprietor may determine what is reasonable notice. The Tribunal appears to have found implicitly that the provisions of the agreement concerning termination were less favourable from the occupant's perspective than the terms applying to occupants who are parties to a Residential Tenancy Agreement and that such difference may be characterised as a "high degree of mastery and dominion". The Tribunal stated that it was not, however, satisfied that the legislature intended that a term of this type is determinative of the question. If it were otherwise "the equity of the statute would be defeated to a substantial degree" citing Edelman J in what appears to be an extrajudicial paper entitled "The Equity of the Statute".
We interpose here to note that in that paper (which is publicly available) His Honour said that if "the equity of the statute is regarded merely as a technique by which statutory context and purpose moulds the interpretation and construction of statutes then it should be uncontroversial". His Honour also referred to "the older sense of the equity of the statute" which "seeks to supplement the statute with external principles of justice". His Honour said that that approach is controversial. The paper does not persuade us that we should deviate from the usual principles applicable to construing statutes.
The Tribunal concluded that there was "nothing of substance in the terms of the agreement which shows an intent to reserve anything as to the whole. The focus of the agreement is rather on prescribing the manner of the giving of the part". The final conclusion was that s 8(1)(c) of the RT Act "does not apply in the facts of the case".
The Tribunal found that on the facts of the case s 13(1) of the RT Act applied. The Tribunal stated that by reason of the finding that the agreement was regulated by the RT Act, the Tribunal had power to hear and determine the Respondent's application. The Tribunal went on to consider the Respondent's claim for compensation by reason of being locked out of the premises and the Tribunal decided that it was appropriate to award the Respondent the sum of $5,000. This was reflected in order 6.
The Tribunal went on to raise the question of whether the tenancy agreement had come to an end and decided that it was appropriate to adjourn the proceedings for a hearing on a subsequent date. By order 8 the Tribunal adjourned the hearing of "all matters bar the now determined claim for compensation". The Tribunal's decision to deal only with part of the issues between the parties and to adjourn determination of the other part was, in our view, understandable because the hearing was expedited and heard approximately one week after lodgment of the application.
The Appellant submitted that the agreement was clear and turning to surrounding circumstances was unwarranted. The Appellant relied upon Toll (FGGT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 in which the court stated that to sign a document known and intended to affect legal relations is an act which itself ordinarily conveys a representation to a reasonable reader of the document. The representation is that the "person so signing either has read and approved the contents of the document or is willing to take the chance of being bound by those contents ... whatever they might be".
Here, the contract was signed and contained the express provision that it was made under the BH Act and referred to the premises as a "boarding house". The Appellant submitted that the express factors on the face of the agreement should have been enough for the Tribunal to conclude that the BH Act applied. The Tribunal erred by disavowing the objective approach in the task of construction in a statement that the "intention of the parties whether objectively or subjectively ascertained when entering an agreement says little or nothing about the Tribunal's task of determining whether the agreement falls within s 8(1)(c)."
The Appellant submitted that the failure by the Tribunal to consider the objective intention of the parties based on the nature of the bargain and context was an error of law. An objective approach to the construction of the agreement required an examination of the terms of the occupancy agreement itself and the nature of the rights it conferred at the time it was entered into, rather than a factual enquiry of the circumstances pertaining at the date of hearing.
Ground 2: the Appellant submitted that the Tribunal erred on a question of law by asking the wrong question, namely how the conduct subsequent to entry into the contract, compared with the facts in Shapkin. The Appellant submitted that in applying s 8(1)(c) and 13(1) of the RT Act the issue was whether, on a proper construction of the agreement, the agreement between the parties was an agreement under which a person boards or lodges with another person. The proper question to ask was: what is the meaning and effect of the agreement having regard to its terms and the circumstances surrounding its making.
The Appellant submitted that the Tribunal embarked on a qualitative comparison between the features of this case and those in Shapkin. Whilst reasoning by analogy is not, in itself, incorrect, any comparison with Shapkin had to be anchored in the agreement. The first question to be asked was what is the meaning and effect of the agreement between the parties.
The Appellant submitted that the agreement between the parties was entered into on 16 April 2025 (being the date which the agreement bears). The Appellant submitted that the Tribunal in fact considered evidence pertaining after the agreement had been entered into. The Tribunal referred to the evidence of the Respondent that she did not observe any caretaker or cleaner on the premises.
Ground 2A: the Appellant submitted that the Tribunal erred by applying the wrong legal rule to the facts by considering subsequent conduct of the parties to interpret the written agreement. The submissions refer to the judgment of the House of Lords in James Miller and Partners v Whitworth Street Estates (Manchester) Ltd [1970] AC 583 where it was held that it is not legitimate to use as an aid in the construction of a contract anything which the party said or did after it was made. The Appellant submitted that this approach to the construction of contracts prevails in Australia: see Pethybridge v Stedikas[2007] NSWCA 154, [59]. The Appellant submitted that the Decision reveals that the Respondent's evidence about the state of affairs present after the agreement had been entered into was used to interpret the terms of the agreement.
Ground 3: the Appellant submitted that the Tribunal made the following findings of fact, in the absence of evidence of those facts (raising a question of law):
Section 8 and section 13:
(j) an agreement having a term, together with the term of any further agreement that may be granted under an option in respect of it, that is equal to or exceeds 99 years.
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.
(4) For the purpose of determining whether an agreement is a residential tenancy agreement, it does not matter that the person granted the right of occupation is a corporation if the premises are used (or intended for use) as a residence by a natural person.
Section 29 of the BH Act provides that the Commissioner for Fair Trading may, by order published in the Gazette, approve a standard form of occupancy agreement.
The leading decision in the Tribunal concerning ss 13 or 8(1)(c) is Shapkin, the decision referred to at some length by the Tribunal at first instance. It is instructive to consider that decision. The appeal was an appeal from the unreported decision in Shapkin v The University of Sydney RT22/41926 dated 4 October 2022 and the appeal was dismissed. We note an appeal to the Supreme Court of NSW in respect of Shapkin was also dismissed: Shapkin v the University of Sydney[2024] NSWSC 109.
In Shapkin the Tribunal at first instance determined that the relevant agreement was one to which the RT Act did not apply because, for the purposes of s 8(1)(c) of the RT Act it was an agreement pursuant to which a person lodges with another person.
The Appeal Panel's approach was to consider the terms of the agreement between the two parties and, in doing so, the Appeal Panel set out portions of the agreement in its decision.
The Appeal Panel also considered the meaning of the expression "a person who boards or lodges with another person" (being the relevant phrase in s 8(1)(c)) and the Appeal Panel approved a statement made in an earlier Appeal Panel decision, namely that of Pupuke v Stratford[2016] NSWCATAP 7. In Pupuke the Appeal Panel stated that "for an occupant to be a boarder or lodger the owner must remain in possession and retain his quality as a 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"[66].
In Shapkin the Appeal Panel then considered the terms of the agreement between the parties. The Appeal Panel found that an evaluation of the parties' rights and obligations under the agreement is required [77]. The Appeal Panel embarked upon a consideration of the provisions of the agreement and concluded that the University had sufficient mastery and control of the residence that the arrangement between the parties fell within s 8(1)(c). At [90(5)] the Tribunal stated that if the parties' rights and duties are comprehensively committed to a written contract, the legal rights and obligations established in the written contract will determine the character of the relationship between the parties (relying upon Construction Forestry Maritime Mining and Energy Union v Personnel Contracting Pty Ltd[2022] HCA 1 (Personnel). The Appeal Panel noted that the exception to this rule would be where the validity of the written contract is challenged as a sham or where there is an assertion that the terms of the agreement have been subsequently varied or waived or the subject of an estoppel. These considerations were not alleged in these proceedings and therefore do not require our consideration.
It is now relevant to turn to the terms of the agreement between the Appellant and the Respondent. The parts of the agreement which, in our opinion, are relevant to determination of the appeal are as follows:
(12) By reference to occupancy principle 11, the parties agree to resolve their disputes informally through discussion and negotiation, or they may apply to NCAT.
(13) By reference to occupancy principles 9 and 10, a resident may not be evicted without reasonable written notice, and the resident may terminate by written notice. A table sets out reasons for termination and applicable notice periods. For example, the proprietor may terminate immediately if there are acts of violence or threats of violence or if there is wilful damage caused to the premises. The proprietor may terminate with one days' notice if there is continued and a serious breach of the agreement, or on one weeks' notice if there is a minor breach of the agreement. Non-payment of the occupancy fee permits the proprietor to terminate on two days' notice. The proprietor may terminate the agreement on a "no grounds" basis giving two weeks' notice. The resident may terminate on two days' notice if there is a serious breach of the agreement by the proprietor or on one weeks' notice if there is a minor breach by the proprietor. The resident may terminate on three weeks' notice without any ground being applicable for that termination.
(14) Attached to the agreement is annexure 1 containing occupancy principles. It is in the same format as the standard occupancy agreement gazetted under the BH Act.
(15) Also attached to the agreement are three pages of additional terms and conditions. These impose restrictions on the resident. For example smoking is prohibited including within the "internal area of the complex". Also pets are prohibited "within the complex". We take these prohibitions to extend to the common areas.
It is necessary for the Respondent's application to be remitted for rehearing. On remittal the issues between the parties will require to be determined in accordance with the terms of the agreement as regulated by the provisions of the BH Act.
We are of the tentative view that although the Appellant has been successful in the appeal, this is not a case that would warrant an order that the Appellant's costs be paid by the Respondent in respect of the appeal. However, we are open to persuasion in this regard and will make provision for the Appellant to seek costs in the orders set out below. With respect to costs at first instance, we note that a costs order was not made, nor has the Appellant sought such an order.
It follows from the above that the following orders are to be made: