• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

3 cited instruments linked from this judgment.

Wickham lived in the main residence until about 2005, when she moved to Sydney. The main residence was subsequently rented to tenants. Wickham accepted that land tax was payable in respect of the main residence. The dispute concerned the separate studio, which the Revenue Office treated as rented residential land [Background, paras 8–12].

The Revenue Office assessed land tax for Studio Q for the 2003/2004 to 2008/2009 years. The assessment included $11,114.73 in land tax, $2,341.59 in penalty tax and $3,284.50 in interest, a total of $16,740.82 [Background, paras 13–14]. Wickham objected. The Revenue Office disallowed the objection on 17 July 2009, and Wickham applied to the Tribunal for review on 1 September 2009 [Background, paras 15–19].

The practical issue was whether Studio Q was “rented” under the Land Tax Act 2004, or whether its occupants had only the kind of right of occupation associated with boarders or lodgers. Wickham described stays of approximately one to five nights, with tea, coffee, drinks, snacks, toiletries and linen supplied, and cleaning available on request. She said that she retained access and did not need to give notice before entering. Her evidence also included that, while she lived in the main residence, she provided breakfast and cleaning and entered the studio regularly [Applicant’s Contentions, paras 3–5; Evidence, paras 5–10].

At the hearing, the Tribunal considered evidence about the separate building, its facilities, its promotion to prospective occupants, the owner's ability to enter, and the arrangements for bookings. The Member concluded that the occupation was not a tenancy for the statutory purpose and ordered that the decision under review be set aside [Issue to be determined, para 6; Reasons, paras 1–5].

The published text uses numbered paragraphs within headings, with numbering restarting between sections. References here therefore identify the relevant heading and paragraph, rather than treating the entire decision as having one continuous paragraph sequence.

Why the court decided this way

The Member began with the statutory provisions reproduced in the reasons. Section 9 of the Land Tax Act imposed tax on “rented residential land”. Section 7 defined “rent” by reference to valuable consideration payable under a tenancy agreement, and defined a tenancy agreement as an agreement granting a right of occupation for value for residential use. The definition covered exclusive or non-exclusive occupation and written, oral, express or implied agreements. It excluded an agreement giving a right of occupation only as a boarder or lodger [Issue to be determined, para 5].

Sections 8(2) and 8(3), as recited in the reasons, dealt with when a parcel or dwelling was taken to be rented on the first day of a quarter. The Member’s decision did not turn on a detailed application of the quarter rules. The reasons instead identified the main factual and legal question as whether Studio Q’s occupants could be regarded as boarders or lodgers [Issue to be determined, paras 6–7].

The Member considered the parties’ focus on exclusive possession, but framed the decisive question differently. Wickham said she could enter the studio, subject to showing courtesy to occupants. The Revenue Office argued that the occupants had an exclusive right of occupation and used the studio as a residence during their stay. The Member treated the statutory exclusion for boarders and lodgers as requiring consideration of the character of the arrangement, rather than treating exclusive possession as the sole answer [Issue to be determined, paras 2–7].

The authorities in the reasons supplied the relevant distinction. The Member referred to Street v Mountford for the proposition that a lodger may be indicated where the landlord provides attendance or services that require access to the premises. The Member also referred to Aslan v Murphy, which distinguishes keys retained for emergencies or repairs from keys retained to enable genuine services. The reason for retaining access, rather than the mere existence of a key, was presented as significant [The Law, paras 3–6].

Applying that reasoning, the Member found that the owner retained keys not only for emergencies, repairs or maintenance, but also to facilitate cleaning, fresh linen and replenishment of supplies [Reasons, para 2]. The Member considered those services inconsistent with the ordinary features of a tenancy in the circumstances of this studio. The finding about intention was expressly stated: the evidence showed that Wickham did not intend occupants to occupy as tenants [Reasons, para 2].

The Member also relied on the character and duration of the stays. The reasons described occupants as being there at will and for short periods, and stated that the occupation bore “none of the hallmarks of a residential tenancy” [Reasons, para 4]. The Member noted that nothing had been put forward to show that an occupancy lasting from 24 hours to five days could be regarded as a tenancy agreement. Read in context, duration supported the conclusion; the reasons do not establish a universal minimum period for a tenancy.

The outcome followed from the classification of the arrangements. Because the Tribunal found the occupancies were not tenancies for the relevant provisions, it set aside the Revenue Office’s decision [Reasons, paras 1–5; Order, para 1].

Before and after state of the law

The decision describes, rather than comprehensively restates, the law before it. The statutory starting point was the Land Tax Act’s broad definition of a tenancy agreement, which covered rights of residential occupation whether or not exclusive, and whether the agreement was written, oral, express or implied. The definition nevertheless excluded an agreement giving a right of occupation only as a boarder or lodger [Issue to be determined, para 5].

The Member referred to several authorities on the distinction. The reasons quote Torrisi v Oliver for a formulation focusing on the right to exclude the landlord and the landlord’s retained control. They quote Noblett & Mansfied v Manley on the ordinary meanings of “lodger” and “boarder”. They also reproduce passages from Street v Mountford and Aslan v Murphy concerning services, attendance, access and the reason a landlord holds keys [The Law, paras 3–6]. Those passages are cited as part of the Tribunal’s legal discussion; the Member’s own conclusion appears in the application to Studio Q.

The decision’s contribution in this matter was its application of those concepts to short-stay accommodation on residential land. It did not say that every short-term stay is lodging, that retained access always defeats a tenancy, or that the provision of any supplies necessarily creates a lodging arrangement. Rather, the reasoning combined the evidence about services, access, intention, length of stay and the overall nature of occupation [Reasons, paras 2–4].

The decision set aside the particular assessment decision. The text provided does not state that the Tribunal changed the statutory test, invalidated any provision, or established a generally applicable time threshold. Nor does it supply subsequent case law showing how a later tribunal or court treated this decision. Accordingly, no reliable “after” account beyond the disposition can be drawn from this judgment alone.

Key passages with plain-English translation

The Member’s statement that the issue was whether the occupants could be regarded as boarders or lodgers is important because it focuses the analysis on the statutory exclusion, rather than treating the case as a simple dispute about physical access [Issue to be determined, para 7]. In plain English: the Tribunal needed to decide what kind of arrangement the occupants actually had.

The Member said the evidence showed Wickham did not intend the occupants to occupy as tenants [Reasons, para 2]. In plain English: the Tribunal accepted that her arrangements and conduct were directed to short-term guest accommodation, not the grant of ordinary residential tenancies. The reasons do not treat intention in isolation; it appears alongside the actual services and access arrangements.

The finding that keys were retained to allow cleaning, fresh linen and replenishment of supplies links the facts to the authorities cited by the Member [Reasons, para 2]. In plain English: keeping a key mattered because of what the owner used it for. A key held only for emergencies or repairs was distinguished in the quoted Aslan passage from a key used to provide genuine services.

The observation that the studio’s occupation bore “none of the hallmarks of a residential tenancy” summarises the Member’s overall view of the evidence [Reasons, para 4]. In plain English: considering the arrangements as a whole, the Member found them unlike a conventional residential tenancy.

Finally, “The decision under review is set aside” states the operative result [Reasons, para 5; Order, para 1]. In plain English: the Revenue Office decision that Wickham had challenged did not remain in force as the result of this review.

What fact patterns trigger this precedent

The decision is most directly relevant to a land tax classification dispute where a separate dwelling or studio is occupied for payment, and the statutory definition of tenancy agreement includes an exclusion for occupation only as a boarder or lodger. The statutory provisions and factual inquiry described in the decision would be engaged where the classification of the arrangement affects whether land is “rented residential land” [Issue to be determined, paras 5–7].

Its factual reasoning may be relevant where occupants stay briefly and the owner provides services or supplies, retains access for service purposes, or manages the accommodation as short-stay guest premises. In Wickham, the evidence included stays of one to five nights, cleaning, linen, supplies, and the owner's retained keys and access [Applicant’s Contentions, paras 3–5; Reasons, para 2].

The judgment is not a rule that short duration alone determines status. Nor does it decide that any owner access means the occupant is a lodger. The quoted authorities themselves distinguish a key held for emergencies or repairs from access retained to provide services. The fact pattern should therefore be considered as a whole, including the actual bargain and the practical arrangements described in the evidence [The Law, para 6; Reasons, paras 2–4].

The decision also arose in a particular statutory setting: the Land Tax Act provisions quoted in the reasons. Its analysis should not be assumed to determine rights or obligations under other legislation, or under a different version of the relevant Act. The judgment lists section 6A of the Residential Tenancies Act 1997 in its legislation list, but the Member’s substantive reasoning reproduced here principally applies the Land Tax Act provisions [List of legislation; Issue to be determined, para 5].

How later courts have treated it

The material supplied contains no later judgments citing or applying Narelle Wickham & ACT Revenue Office [2010] ACAT 80. It is therefore not possible, from this source alone, to say whether later courts followed, distinguished, limited or otherwise treated the decision.

The judgment itself refers to Noble v Centacare [2003] ACTSC 37, and to Torrisi v Oliver, Noblett & Mansfied v Manley, Street v Mountford and Aslan v Murphy. Those are authorities considered in the 2010 decision, not evidence of later treatment of Wickham. The judgment identifies Noble as an unreported Supreme Court of the ACT decision and says both parties referred to it [The Law, paras 1–2].

For research purposes, the safe source-grounded description is that Wickham is a Tribunal decision applying the boarder-or-lodger distinction to the particular evidence concerning Studio Q. A proposition about its later precedential treatment would require material not included in the judgment supplied here.

Still-open questions

The reasons do not determine how the same statutory provisions would apply to longer stays, different service arrangements, or circumstances in which an owner retained a key but rarely or never entered. The Member’s decision depends on the evidence before the Tribunal, including the stated short stays and services [Reasons, paras 2–4].

The judgment also does not set out a complete account of every occupant’s individual agreement or stay. It records the general nature of the arrangements and the evidence given about the studio, but the text supplied does not provide a detailed occupant-by-occupant analysis. That leaves open how variation between bookings might affect the classification under the statutory definitions.

The Member noted that the Applicant asserted the studio did not have a fully equipped kitchen, dining room, laundry or dedicated parking, but the final reasoning does not identify those features as decisive [Applicant’s Contentions, para 4]. The judgment therefore does not establish how much weight those facilities, or their absence, should carry in another case.

The reasons also do not give a detailed calculation of the land tax assessment or explain how setting aside the decision affected each assessed year, penalty and interest amount. The order simply sets aside the decision under review [Background, paras 13–18; Order, para 1].

Finally, the judgment does not address the current wording or subsequent amendment of the legislation, nor does it provide later authorities. Its statutory discussion and result should therefore be understood as the Member’s decision on the provisions and evidence described in the judgment, not as a statement about later legislative or judicial developments.

This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.