Nguyen v Hao [2025] SACAT 65

Under the agreement between the parties, the respondent paid the applicant a bond and rent but otherwise shared equally in utility payments with her and another occupant. The agreement permitted the respondent to reside in a room at the property and the use of common shared areas.

The Tribunal's decision considers the proper characterisation of the party's legal relationship and, consequently, whether the Tribunal has jurisdiction to deal with the dispute under the RTA.

Held, setting aside and substituting the decision under review:

• The arrangement between the parties was not a residential tenancy agreement as the respondent did not have exclusive occupation of the property, or a discrete part of it (and the fact that the agreement between the parties was described as a residential tenancy agreement was not determinative);
• The arrangement between the parties was not a sub-tenancy as the arrangement would have contravened sections 64 and section 65 of the RTA;
• The arrangement between the parties was not a co-tenancy as the landlord only entered into a tenancy agreement with the applicant;
• The arrangement between the parties was not a rooming house agreement as the applicant did not rent out the room as part of a business and therefore she was not a rooming house proprietor;
• The Tribunal does not have jurisdiction to deal with the dispute because it is not a tenancy dispute within the meaning of the RTA and, therefore, the application is dismissed.

Internal review - Residential Tenancy - Jurisdictional matters - Existence of residential tenancy agreement

Residential Tenancies Act 1995 s 3, 5, 24, 53, 64, 65, 74, 89A, 104, 105D, 105E, 105O, 105N, 114A

South Australian Civil and Administrative Tribunal Act 2013 s 70

Azadegan v Kirby [2020] SACAT 10

Banner v Banner & Ors [2023] SACAT 99

Clark & Clark v Karan & Karan by their agent Ouwens Casserly Property Management (2017) SIR000078 (unreported)

Corbett v Parekh & Adhikari (2019) SMCH000537 (unreported)

Dymond & Grey (by Elders Real Estate Playford) v Raven & Raven [2011] SARTT 3

Farrugia v Graham, Graham & South Australian Housing Trust [2016] SACAT 35

Henderson v Housing Choices South Australia Ltd [2019] SASC 121

Hier v Hier [2017] SACAT 30

Leffler & Anor v Nepondi Pty Ltd [2020] SACAT 105

McColl v Hearse [2016] SACAT 38

Munroe v Small Boat Club of South Australia Inc [2016] SACAT 36

Nejad v Rochow [2020] SACAT 62

Noblett and Mansfield v Manley [1952] SASR 155

Radiach v Smith [1959] HCA 45; (1959) 101 CLR 209

Street v Mountford [1985] UKHL 4; [1985] AC 809

Tronnolone v Edwards & Bryan [2016] SACAT 27

Ms S Sproull, RentRight SA, appeared for the respondent

1. This is an application for the review of an order made by the Tribunal on 31 December 2024 in matter number 2024/SH006991 (the original Order).
2. In the original Order, the Tribunal dealt with an application by the respondent resident, Mr Hao, seeking an order for compensation for Ms Nguyen's breach of her obligations to him under an agreement described as a residential tenancy agreement, in relation to the property at Christies Beach (the property).
3. In the original Order, the Tribunal found that there was a rooming house agreement between the parties, Ms Nguyen was the proprietor of the rooming house, and she was in breach of her obligations under the agreement. The Tribunal ordered Ms Nguyen to pay compensation of $1,316.20 because of her breach.
4. Ms Nguyen disagrees with the original Order. She says that the determination in the original Order that she was operating a rooming house, is inconsistent with other decisions of the Tribunal in similar circumstances. Accordingly, she has applied for an internal review of the original Order.
5. An internal review is conducted under section 70 of the South Australian and Civil and Administrative Tribunal Act 2013 (SACAT Act). On review, section 70 SACAT Act requires that the Tribunal must make the correct or preferable decision, taking into account the evidence before the Tribunal at the original hearing, giving appropriate weight to the original Order, and taking into account any evidence the Tribunal considers is relevant and appropriate to take into account in the course of the review.

1. Section 70 SACAT Act requires that an application for internal review is lodged within one month of the decision under review, unless the Tribunal exercises the discretion to extend that period.
2. At the review hearing, Ms Sproull submitted that it would be unfair for the Tribunal to exercise the discretion to extend the period for the lodgement of the application, and the Tribunal should not do so.
3. I consider that the ground of review is genuine, and the issue is of significance. I will accept the application for review, even though it is late.
4. An application for internal review necessarily includes an application for leave. Section 114A of the Residential Tenancies Act 1995 (RTA) provides that the Tribunal must only grant leave under section 70(1a) SACAT Act where an application for review concerns an order that a person make a payment to another person, if exceptional circumstances apply. In this matter, because the dispute concerns an issue about jurisdiction, I consider there are exceptional circumstances.

1. Ms Nguyen has been living at the property for about three years. The property is a three bedroom house. It has a lounge and dining area, kitchen, laundry, one bathroom and a separate toilet.
2. When she first moved in, Ms Nguyen was a co-tenant with two other persons. Over a period of time, the other persons vacated, but Ms Nguyen continued to reside at the property. Ms Nguyen is now the sole tenant named on a residential tenancy agreement with the landlord.
3. The landlord agreed that Ms Nguyen could rent out the other two bedrooms at the property. Ms Nguyen advertised each of the other bedrooms as unfurnished rooms for rent.
4. On 29 July 2024, Ms Nguyen entered into an agreement with Mr Hao for him to rent a bedroom at the property. The agreement was described as a "periodic - residential tenancy agreement" between herself as the landlord, and Mr Hao as the tenant.
5. On 4 August 2024, Ms Nguyen sent an email to Mr Hao in which she stated that:
   • he had "posed a serious risk to the life, health or safety of the landlord, the landlord's agent or someone who lives in the immediate vicinity" (by leaving doors and windows open);
   • Mr Hao had failed to provide proper identification documents to her;
   • due to the seriousness of these issues, she required him to leave the property on 4 August 2024.
6. Under the impression that he had no option, Mr Hao vacated the property on the same day. He then brought an application in the Tribunal seeking repayment of his bond, and repayment of overpaid rent and utilities.
7. The original Order required Ms Nguyen to pay compensation of $1,316.20 being $966.20 for his bond refund, and the repayment of rent and utilities in advance; plus an amount of $350.00 for breach of his right to quiet enjoyment of the property due to Ms Nguyen having required Mr Hao to vacate the property in circumstances where she was not entitled to do so.

1. Section 24 RTA grants the Tribunal exclusive jurisdiction to hear and determine a tenancy dispute.
2. Section 3 RTA defines the term "tenancy dispute" as follows:

(a) a claim under a residential tenancy agreement, a rooming house agreement, or an agreement collateral to a residential tenancy agreement or a rooming house agreement; or

(b) a dispute between parties or former parties to a residential tenancy agreement, a rooming house agreement, or an agreement collateral to a residential tenancy agreement or a rooming house agreement, about matters arising under the agreement or this Act; or

(c) any matter that may be the subject of an application under this Act to the Tribunal;

1. In summary, Ms Nguyen's argument is that the dispute is not a tenancy dispute because it does not arise from either a residential tenancy agreement or a rooming house agreement; therefore, the Tribunal does not have jurisdiction to deal with the dispute, and the Tribunal should have dismissed the application.
2. Mr Hao disputes the application and submits that the original Order is the correct or preferable order - the arrangement between him and Ms Nguyen is properly characterised as a rooming house agreement, and therefore the Tribunal did have jurisdiction to deal with the dispute.
3. Therefore, the question is: what is the true nature of the legal relationship between the parties, and does it fall within the scope of the definition of tenancy dispute in the RTA?
4. The legal relationship between Ms Nguyen and Mr Hao could be categorised in a number of different ways. I will consider the characteristics of each different legal relationship which may be relevant, and then I will consider what is the proper characterisation of their legal relationship. This will inform my decision as to whether or not this dispute falls within the RTA.

The different legal relationships that may arise when one person grants to another, a right of occupation, in residential premises (and their characteristics)

1. The following legal relationships may arise in relation to the provision of a right to reside in residential accommodation:
   • a landlord/tenant relationship - a residential tenancy agreement;
   • a rooming house/proprietor relationship - a rooming house agreement;
   • a boarder/lodger relationship;
   • a sub-tenancy;
   • a co-tenancy;
   • a licence to occupy.

1. A residential tenancy agreement does not have to be in writing. It is merely a special form of contract and so the ordinary principles of contract law apply, subject to the RTA.[1] The fundamental requirements for any binding contract are:
   • an intention to create legal relations
   • an offer and an acceptance
   • consideration
   • capacity of the parties
   • agreement on the terms
   • legality.
2. The issue of whether or not the parties intended to create legal relations will commonly arise in the context of arrangements between family members about accommodation, and the facts of each individual case will need to be examined to determine whether or not there was actually an intention to create a legal relationship.[2]
3. The question of offer and acceptance can sometimes be confusing if the parties have communicated by email or otherwise, and for example, it may not be clear whether a particular piece of correspondence is intended to be a binding offer, or an invitation to treat.[3]
4. Section 53 RTA states that the only permissible consideration for a residential tenancy is rent or a bond, or both.[4]
5. A person can only enter into a residential tenancy agreement as a landlord, if they have the legal capacity to grant the right of occupation to a tenant.[5]
6. The parties must agree on all essential terms of the agreement.[6]

1. Section 3 RTA defines a "residential tenancy agreement" as:

an agreement (other than a rooming house agreement) under which a person grants another person, for valuable consideration, a right (which may, but need not, be an exclusive right) to occupy premises for the purpose of residence;

2. In other words, the essential requirements of a residential tenancy agreement are:
   • the agreement must require the landlord to provide to the tenant, a right to occupy residential premises or a clearly identified section of the premises;
   • generally speaking, that right must be exclusive;
   • the right must be in return for the payment of rent and/or a bond; and
   • none of the exemptions contained in section 5 RTA must apply.
3. The right to occupy the entire property or a discrete section of it has been dealt with by the Tribunal in a variety of contexts:
   • Generally speaking, if a person is living under the same roof as the landlord, it would be unlikely that they have a residential tenancy agreement; however, it depends on the circumstances, and even if that is the case, it may be possible for there to be a residential tenancy agreement - if the section of the house which is occupied by the person is self-contained (eg with its own bathroom and kitchen facilities, but not necessarily a laundry), it is secure, and it has its own means of access.[7]
   • Even if there are a number of persons living at the property, where each person occupies their own discrete, secure, self-contained part of the building and even if there are some shared facilities (which do not include for example, a kitchen, bathroom or living area), then the arrangement is still likely to be a residential tenancy agreement.[8]
   • A granny flat would generally be regarded as a discrete part of premises which may be subject to a residential tenancy agreement.[9]
4. The right of occupation must be created in a residential property. Whether the agreement is for occupation for the purpose of residence, or for a commercial purpose, will be for the Tribunal to determine depending on the circumstances.[10]
5. The right to exclusively occupy a property or a discrete section of it, would usually be regarded as a fundamental characteristic of a residential tenancy agreement.
6. His Honour Justice Peek provided guidance about the significance of exclusive possession in determining whether or not an arrangement between parties is a residential tenancy agreement, in Henderson v Housing Choices South Australia Ltd [2019] SASC 121:[11]

"Butt's Land Law stresses the importance of exclusive possession and that its absence will be the leading indication that the parties did not intend to create a leasehold estate but intended, rather, to merely grant a licence to occupy or enter the premises. Thus it is stated:[12] > > [7.90] A lease (or demise) gives the tenant the right to exclusive possession - the right to exclude all others from the land. This includes the right to exclude even the landlord, subject only to any rights the landlord has by law or under the lease agreement, such as the right to enter and view the state of repair. ... In contrast, a licence gives a mere right to occupy, ...

7. It is also consistent with the obligation under section 64 RTA for a landlord to provide a tenant with vacant possession of the property from the day the tenancy begins.
8. Although for most contracts, consideration is a relatively broad concept, section 53 RTA states that the permissible consideration for a residential tenancy agreement must only be a rent, or a bond, or both. This strict requirement has been applied by the Tribunal where for example, a person was required to pay for rates and taxes for a property,[13] and where a person was residing in part of a disused petrol station, in return for having a caretaker role.[14]
9. Section 5 RTA contains a number of exemptions; for example, the RTA will not apply to an agreement genuinely entered into for the purposes of a holiday or an agreement in relation to club premises.[15]
10. The Tribunal has dealt with a number of matters involving accommodation arrangements made through AirBnB. The Tribunal's approach with those matters has been that each application must be considered on its merits, and merely because an accommodation arrangement has been made through AirBnB does not necessarily mean that it is for the purpose of a holiday.[16]
11. The Tribunal has also found that the nature of an arrangement between parties can fluctuate, if the circumstances also fluctuate - and so, at some point in the arrangement, it may have been a residential tenancy agreement, and at other times it may not.[17]

1. Section 3 RTA contains the following definitions about rooming houses:

A rooming house agreement is defined as an agreement under which "... accommodation is provided (with or without meals, or other facilities or services) in a rooming house" > > Rooming house is defined as "... residential premises in which 2 or more rooms are available, for valuable consideration, for residential accommodation ..." > > Rooming house proprietor means a person who carries on a business involving the provision of accommodation under rooming house agreements. > > Rooming house resident means a person who boards or lodges in a rooming house.

2. Therefore, the essential characteristics of a rooming house agreement are:
   • the agreement must be for accommodation at residential premises, where at least two rooms are available for rent;
   • generally speaking, the resident will be provided with the right to exclusive occupation of a bedroom, and access to all common areas in the house;
   • a person who is residing at the property must be providing valuable consideration in return for the right to live there and the only valuable consideration which can be required is payment of rent and/or a bond; [18]
   • the person providing the accommodation must be carrying on a business involving the provision of accommodation under rooming house agreements.
3. Although section 104 RTA allows for standard terms of a rooming house agreement to be prescribed, there are no standard terms prescribed by the regulations (although there is a standard form of agreement on the Consumer and Business Services website).
4. The use of common facilities at a rooming house will generally be governed by house rules. A proprietor must ensure that house rules are displayed in a prominent location at the house, and provide a copy to a resident on request.[19]
5. Section 105O RTA provides that a proprietor must take reasonable steps to provide and maintain the locks and other devices which are necessary to ensure that the resident's room is reasonably secure.
6. Section 105N RTA provides that a proprietor must ensure that the resident has reasonable access to their room and shared facilities, and will not unreasonably interfere with their use of their room or the shared facilities.

1. Section 5(1)(b) RTA states that an agreement under which a person boards or lodges with another, is exempt from the RTA, unless the agreement is a rooming house agreement.
2. In Noblett and Mansfield v Manley,[20] Mayo J explained the situation of a boarder or lodger in the following terms:[21]

The primary and usual meaning of "lodger", as so defined, is "one who resides as an inmate in another person's house, paying a certain sum periodically for the accommodation," or "one who occupies an hired room in another person's house"... A "boarder" is "one who... has his food, or food and lodging, at the house of another for compensation; one who lives in a boarding house, or with a family as one of its members, at a fixed rate; one who has food at another's table, or meals and lodgings in his house for pay, or compensation, of any kind. In ordinary circumstances with both lodger and boarder legal possession remains in the person who provides room or rooms, or meals. He retains possession and control over rooms and means of ingress and egress, but grants license to guests who pay, or give consideration for the privilege.

3. In other words, a boarder or lodger is someone who stays in the owner's house with them. The boarder or lodger may be provided with meals and other services as part of their accommodation arrangement.

1. Where a person rents a residential property from a landlord, then that person is a tenant. The tenant may sub-let the property to someone-else (subject to the landlord's consent).[22] If that occurs, for the purposes of the sub-letting arrangement, the tenant will often be described as the head tenant, and the person to whom the property has been let will be described as the sub-tenant; but for the purposes of the RTA, the head tenant takes on the rights and responsibilities of a landlord under the RTA, and the sub tenant takes on the rights and responsibilities of a tenant under the RTA.

1. Where two persons enter into a single residential tenancy agreement as co-tenants with the landlord, they are jointly and severally liable to the landlord for the duties and obligations of the tenant, under the tenancy agreement; and each of them can exercise their rights against the landlord, under the tenancy agreement.
2. Other than the power to make orders distinguishing between the liability of tenants when dealing with an application under section 89A RTA, the Tribunal does not make orders dealing with any dispute about the liability of co-tenants (ie in relation to a dispute between the co-tenants).
3. This is because the Tribunal does not have jurisdiction:
   • the Tribunal has no inherent equitable jurisdiction;
   • the Tribunal has no specific statutory power.
4. The same general principles apply to a dispute between co-residents, under a rooming house agreement.

1. A person who has a licence to occupy premises, has a form of occupation which carries with it significantly fewer rights than those of a tenant or rooming house resident. A licence to occupy is granted by the owner/landlord, and is subject to the owner/landlord's right to enter the property at any time. It may be terminated at any time (subject to the terms of the agreement).
2. In Radaich v Smith,[23] Windeyer J said as follows:

Whether the transaction creates a lease or a licence ... depends upon the nature of the right which the parties intend the person entering upon the land shall have in relation to the land ...[24]

3. A licence to occupy may arise for example, where a right of occupation is granted by a house owner, to a person to reside at the property while the owner is on holidays, and in return the person performs a caretaker role, but does not pay rent.

1. In deciding whether or not the arrangement between the parties falls under the RTA, it is necessary to examine their rights and obligations under the written agreement which are in summary:

a) The agreement refers to Ms Nguyen as the "landlord" and Mr Hao as the "tenant". > > b) The agreement is periodic. > > c) Mr Hao was required to pay rent of $190 per week, on a fortnightly basis, to Ms Nguyen. Rent was to be paid into a bank account in Ms Nguyen's name. > > d) Mr Hao was also required to pay a bond of $760 to Ms Nguyen. > > e) The agreement requires Mr Hao to pay one third of the outgoings (electricity/gas/water/wifi). > > f) The agreement states that excluded areas are other bedrooms and desk area. > > g) In the "Additional terms" section of the agreement, there are statements in relation to unacceptable behaviour, and that most communications will be by text. > > h) The agreement purports to apply the rights and obligations of a landlord and tenant, between Ms Nguyen as landlord and Mr Hao as tenant.

2. The terms of the agreement are clearly inconsistent with the actual arrangements between the parties which were:
   • Mr Hao would occupy one bedroom at the property, and he would have shared use of the common facilities;
   • Ms Nguyen would continue to live at the house and there would be a third person also living at the house;
   • Mr Hao would pay rent and a bond to Ms Nguyen;
   • The three occupants of the property would share equally in the utilities, the cost of cleaning products and other items shared by all occupants of the property, and they would have shared responsibility for cleaning the house.

Question 1: Is the arrangement between the parties a residential tenancy agreement?

1. The case of Street v Mountford,[25] established that the title given to an agreement by the parties, is irrelevant in determining the correct legal nature of the document. In that matter, the agreement was described by the parties as a licence, but the Court rejected the argument that the description (which was used throughout the agreement) determined the nature of the agreement; and the Court said that even if the parties described the arrangement as a licence (to occupy), in doing so, they could not alter the true effect of the agreement_,[26] and "... the professed intentions of the parties is irrelevant..."[27]_
2. Although the agreement purported to provide Mr Hao with the exclusive right to occupy the entire property, that was not the case and it was never intended to be the case. Mr Hao was only ever to have the right to exclusively occupy a particular bedroom in the house, and to have a right to use the common facilities which were shared with other residents.
3. Therefore, the agreement cannot be a residential tenancy agreement - Mr Hao does not have exclusive occupation of the property, or a discrete section of it.

Question 2: Is the arrangement between the parties a sub-tenancy?

1. In her email communications with the landlord's agent, both the agent and Ms Nguyen have described the arrangement as a sub-tenancy. I do not agree that the arrangement was a sub-tenancy for the following reasons:

a) The arrangement would have contravened section 64 RTA which requires a landlord to provide a tenant with vacant possession of the property - that could not happen while Ms Nguyen and another person were residing at the property.[28] > > b) Any such arrangement would also contravene section 65 RTA which relevantly provides that: > > "...(a) the tenant is entitled to quiet enjoyment of the premises without interruption by the landlord or a person claiming under the landlord or with superior title to the landlord's title; and

(b) the landlord will not cause or permit an interference with the reasonable peace, comfort or privacy of the tenant in the tenant's use of the premises..."

Question 3: Is the arrangement between the parties a co-tenancy or a co-residence agreement?

1. This matter is not a co-tenancy and the parties are clearly not co-residents, as the landlord has only entered into an agreement with Ms Nguyen. However, I note that in some ways Ms Nguyen has behaved as if she and the other residents are co-residents: for example, in sharing with them equal rights to the use of the common areas, and equal obligations concerning the payment of utilities and cleaning products, and in relation to the cleaning.

Question 4: Is the arrangement between the parties a rooming house agreement?

1. The original Order found that the arrangement is a rooming house agreement, but Ms Nguyen has argued that this is inconsistent with other Tribunal decisions in which the Tribunal has found that where a rooming house proprietor resides at the property, there cannot be a rooming house agreement between that person, and other residents.
2. Ms Nguyen has advertised two rooms for rent, and so this aspect of the requirements for a rooming house, is satisfied.
3. Mr Hao was required to pay rent and a bond, and so that is also consistent with the requirements for valuable consideration, for a rooming house.
4. However, in order for this arrangement to be a rooming house within the meaning of the RTA, Ms Nguyen must have rented the room to Mr Hao as part of a business which she is carrying on involving the provision of accommodation under rooming house agreements.[29]
5. In the review hearing, Ms Nguyen said that she was not seeking to make a profit from offering the other two rooms in the house for rent. She had calculated rent to be paid by herself and the other two residents at the property, on the basis of a pro rata calculation - the person who had the largest room paid slightly more rent. But, the total rent paid by the three of them, was an amount equal to the amount of rent she was charged under the tenancy agreement.
6. On that basis, I consider that Ms Nguyen is not running a business for the provision of accommodation under rooming house agreements.
7. Therefore, the agreement between Ms Nguyen and Mr Hao, cannot be a rooming house agreement.
8. In this matter, I am not required to make a determination about the issue raised in other matters on which Ms Nguyen sought to rely (ie that there cannot be a rooming house agreement where a proprietor resides at the property). However, I observe that it is problematic in a matter such as this, to determine the true nature of the legal relationship between the parties under the RTA, when some aspects of their arrangements are in the nature of a proprietor/resident relationship, while others are in the nature of a co-resident relationship. I do not consider that the exemption for boarding/lodging arrangements in relation to rooming house agreements, addresses this issue.

Question 5: Is the arrangement between the parties a boarder or lodger arrangement?

1. I consider that under the agreement with Ms Nguyen, Mr Hao had exclusive occupation of his room, and this would generally be regarded as inconsistent with the arrangement being a boarder or lodger arrangement.
2. However, despite the shared responsibilities of the occupants, Ms Nguyen did have a level of control over the other occupants - they paid their rent and bond to her, and she set the house rules. These characteristics are more aligned with a boarding/lodging arrangement.
3. I consider that of all the legal relationships that could apply to their arrangement, this is the most consistent with the terms of their agreement. Even so, because Ms Nguyen is not a rooming house proprietor for the purposes of the RTA, the arrangement cannot be a rooming house agreement under the RTA.

Question 6: Is the arrangement between the parties a licence to occupy?

1. The arrangement could be a licence to occupy but again, Mr Hao's right to exclusive occupation of his bedroom, does not sit neatly with the characteristics of a licence to occupy.

In any event, such a relationship would be outside the Tribunal's jurisdiction, under the RTA.

1. For the reasons outlined above, I have concluded that the Tribunal does not have jurisdiction to deal with the dispute because it is not a tenancy dispute within the meaning of the RTA.
2. The consequence of such a determination is that any dispute between the parties must be dealt with in the Magistrates Court. However, I observe that if Mr Hao had brought his original application in the Magistrates Court, he may well have been successful at least for the repayment of his bond, and overpaid rent and utilities (which is $966.20).

1. The Tribunal dispenses with the strict requirement for the application for internal review to be lodged within one month of the date of the decision under review.
2. The Tribunal grants leave for the application for internal review to proceed.
3. The Tribunal sets aside the Tribunal order made on 31 December 2024 in matter number 2024/SH006991 and substitutes the following order instead:

The application is dismissed as the Tribunal has no jurisdiction to deal with it.

[1] Tronnolone v Edwards & Bryan [2016] SACAT 27.

[2] Hier v Hier [2017] SACAT 30; Banner v Banner & Ors [2023] SACAT 99.

[3] Clark & Clark v Karan & Karan by their agent Ouwens Casserly Property Management (2017) SIR000078 (unreported).

[4] Although a payment for an option may be acceptable in some circumstances.

[5] In Leffler & Anor v Nepondi Pty Ltd [2020] SACAT 105, the Tribunal found that was not the case as the person who attempted to grant a tenancy to another, was not the sole owner of the property, and did not have the approval of the other owner of the property to create the tenancy agreement.

[6] In Dymond & Grey (by Elders Real Estate Playford) v Raven & Raven [2011] SARTT 3, the Tribunal found that the landlords' agent had made a genuine mistake about the rent to be charged, but in the circumstances, changed the amount of rent payable under the agreement.

[7] In Lennard v Sweet (2021) SIR000215 (unreported), the Tribunal found that there was a residential tenancy agreement for a section of the house because it was discrete, self contained and able to be locked.

[8] Shires v Fisher (2020) SIR000267 (unreported).

[9] In Hier v Hier [2017] SACAT 30, and in Azadegan v Kirby [2020] SACAT 10, the Tribunal found that there was a residential tenancy agreement for a granny flat.

[10] In Nejad v Rochow [2020] SACAT 62, the tribunal dismissed the tenant's argument that the arrangement was for a commercial purpose - the tenant argued that he had rented the property to rent out for short term stays, a commercial purpose. But the landlord's agent gave evidence that the only purpose which had been communicated to her, was for residential use.

[12] Brendan Edgeworth, Butt's Land Law (Thomson Reuters Lawbook Co, 7th ed, 2017) 306-307.

[13] McColl v Hearse [2016] SACAT 38.

[14] Corbett v Parekh & Adhikari (2019) SMCH000537 (unreported).

[15] In Munroe v Small Boat Club of South Australia Inc [2016] SACAT 36, the Tribunal found that there was no residential tenancy agreement because the "tenant" lived in a shipping container on land owned by a small boat club. The Tribunal found that the exemption in section 5(1)(iii) RTA applied.

[16] The Tribunal has found that a residential tenancy agreement does exist, in some of those matters; see for example Azadegan v Kirby [2020] SACAT 10.

[17] Farrugia v Graham, Graham & South Australian Housing Trust [2016] SACAT 35.

[20] [1952] SASR 155; see also Ellis v City Woman's Hostel RTT 97/022789.

[23] [1959] HCA 45; (1959) 101 CLR 209.

[25] [1985] UKHL 4; [1985] AC 809.

[28] It follows that some of the obligations under the agreement (such as the obligations to share equally the cost of utilities and cleaning products), are shared equally between the residents (including Ms Nguyen) - are inherently inconsistent with a landlord/tenant or head tenant/subtenant arrangement.

[29] Because of the definition of rooming house proprietor.