Rogers v Vinoly

At first instance

1. At first instance, the appellant sought orders from the Tribunal that the purported notice of termination was not given in accordance with the Residential Tenancies Act 2010 (NSW) (the Act). Further, she sought an order declaring that an agreement between her and the respondents amounted to a residential tenancy agreement, to which the Act applies. The respondents also brought their own application for termination and possession, although as mentioned, they contended that the appellant was in fact not a tenant, but merely a border or lodger.
2. At first instance, the Tribunal determined that there was no jurisdiction to determine the appellant's application, on the basis that there was no written residential tenancy agreement between the respondents and the appellant. The reason it was necessary for there to be a written residential tenancy agreement between the appellant and the respondents is because of the operation of s 10 of the Act.
3. Section 10 of the Act provides as follows: 10 Application of Act to occupants in shared households A person who occupies residential premises that are subject to a written residential tenancy agreement, is not named as a tenant in the agreement and who occupies the premises together with a named tenant is a tenant for the purposes of this Act only if: (a) a tenant under that agreement transfers the tenancy to the person or the person is recognised as a tenant (see Part 4), or (b) the person is a sub-tenant of a tenant under a written residential tenancy agreement with that tenant. Note: Boarders and lodgers are not covered by this Act (see section 8 (1) (c)). An occupier may be recognised as a tenant (see sections 77 and 79).
4. Section 10 applies where a person (in this case the appellant) occupies residential premises that are subject to a written residential tenancy agreement, but that person (the appellant) is not named as a tenant in the written residential tenancy agreement and further, that the person (the appellant) occupies the premises together with another person who is named as the tenant in the written residential tenancy agreement (in this case the respondents). In such cases, the person (in this case the appellant) is only a tenant for the purposes of the Act if that person (the appellant) is a sub tenant of the person named as a tenant under a written residential tenancy agreement with that tenant (the respondents).
5. The Tribunal, after reviewing the evidence, held that there was no written residential tenancy agreement between the appellant and the respondents, who were the named tenants under the written tenancy agreement and therefore the appellant was not a tenant for the purposes of the Act. Accordingly, the application was dismissed "as the Tribunal has no jurisdiction to determine the application."
6. In the course of reviewing the evidence the Tribunal considered the following: 1. That the respondents advertised a room to rent for $350 per week, on a number of websites. 2. That the appellant found the room on a website known as Gum Tree. 3. That in the course of texts between her and Mr Vinoly (one of the respondents) she agreed to pay 2 weeks rent and a security deposit of 2 weeks rent. 4. That the appellant moved into the apartment on 23 May 2015. 5. That the appellant paid the security deposit bond of 2 weeks rent on 28 May 2015 and commenced to pay fortnightly rent. 6. That the respondent gave to the appellant a receipt for the security bond. 7. That 2 weeks after moving into the premises the appellant notified the respondent that she was considering moving out and Mr Vinoly said "we can just call this your two weeks' notice" but subsequently the appellant changed her mind and continued to reside at the premises.
7. The Tribunal considered whether the evidence, either separately or in concert, amounted to a written residential tenancy agreement. In doing so, the Tribunal paid particular attention to the rental bond receipt noting that it did not specify a term, or the rent to be paid, or when the rent was to be paid and that it was only signed by one of the respondents. The Tribunal concluded that it was a receipt for money and not a written tenancy agreement. Next, the Tribunal considered whether the initial exchange of texts amounted to a written agreement and concluded that they did not, for the reason that no lease term was specified by either party. Finally, the Tribunal considered the content of the various exchanges and concluded that they were consistent with a casual arrangement and did not evidence a tenancy.

Notice of Appeal

1. The appellant seeks to appeal the decision of the Tribunal at first instance on the basis that the decision raises a question of law. Section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) provides, in effect, that an appeal against a final decision of the Tribunal at first instance may be made to the appeal panel as of right on any question of law. If no question of law arises, the appellant may seek leave to appeal on any other grounds. The appellant does not seek leave to appeal, as she contends that a question of law arises.
2. In substance, the appellant contends that the Notice of Appeal raises the question of law whether the Tribunal erred in construing the Act and applying that incorrect construction in determining whether or not the appellant was a tenant. The appellant contends that the Act defines a residential tenancy agreement in a broad manner and the Tribunal erred in applying the definition too narrowly. In effect, the appellant contends that had the Tribunal properly construed the expression "residential tenancy agreement", the Tribunal could only have held that the appellant satisfied the definition of tenant under the Act. In other words, the contention is that it was not open, on a proper construction of the Act and applying the uncontested facts, for the Tribunal to conclude that she was not a tenant.
3. The question whether the undisputed facts necessarily fall or do not fall within the provision of a statutory enactment properly construed is generally a question of law. Hope v Bathurst City Council (1980) 144 CLR 1 at 7; Collector of Customs v Agfa-Gevaert (1996) 186 CLR 389 at 395. 21.
4. The Federal Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 (Pozzolanic) identified five general propositions in relation to the distinction between questions of law and fact. These were extracted by the High Court in Collector of Customs v Agfa-Gevaert (1996) 186 CLR 389 at 395 (Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ) (Agfa-Gevaert):
5. The question whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law. (22) Jedko Game Co Pty Ltd v Collector or Customs (NSW) (1987) 12 ALD 491; Brutus v Cozens [1973] AC 854.
6. The ordinary meaning of a word or its non-legal technical meaning is a question of fact. (23) Life Insurance Co or Australia Ltd v Phillips (1925) 36 CLR 60 at 78; NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner or Taxation (1956) 94 CLR 509 at 512; Neal v Department or Transport (1980) 3 ALD 97 at 107-108; Jedko (1987) 12 ALD 491.
7. The meaning of a technical legal term is a question of law. (24) Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 137-138; Lombardo v Federal Commissioner or Taxation (1979) 40 FLR 208 at 215.
8. The effect or construction of a term whose meaning or interpretation is established is a question of law. (25) Life Insurance Co of Australia (1925) 36 CLR 60 at 79.
9. The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law." (26) Hope v Bathurst City Council (1980) 144 CLR 1 at 7, per Mason J with whom Gibbs, Stephen, Murphy and Aickin JJ agreed; Australian National Railways Commission v Collector of Customs (SA) (1985) 8 FCR 264 at 277, per Sheppard and Burchett JJ. In Pozzolanic, the Full Court qualified the fifth proposition. The Court said that, when a statute uses words according to their ordinary meaning and it is reasonably open to hold that the facts of the case fall within those words, the question as to whether they do or do not is one of fact. (27) Pozzolanic (1993) 43 FCR 280 at 288, citing Hope (1980) 144 CLR 1 at 8.
10. In relation to the fifth proposition, in Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6 Hill J noted at 16 as follows: The rule that a question of fact is involved in determining whether facts fall within the meaning of a word once that meaning is ascertained, may cause confusion. The confusion comes about because there are actually two related rules, the distinction between which is not always readily apparent. The first of these rules is generally expressed as being that where the facts have been fully found or there is no dispute as to the facts and the question is whether those facts necessarily fall within the description of a word or phrase in a statute, that will be a question of law. This is the sixth proposition enunciated by [Jordan] CJ in the Australian Gas Light Co case. The rationale for this principle is clear enough. If only one meaning is open but a tribunal arrives at a different meaning, underlying the Tribunal's conclusion must be an error of principle, that is to say, an error of law. The second related principle is that where the facts found are capable of falling within or without the description used in the statute, the decision which side of the line they fall on will be a decision of fact and not law. Such a decision will generally involve weight being given to one or other element of the facts and so involve matters of degree.
11. The Full Federal Court in Commissioner of Taxation v Crown Insurance Services Limited (2012) 207 FCR 247 said at [39]: When the statute under consideration has no technical meaning, but is understood in its plain ordinary meaning, a question of law will arise if the facts found must necessarily have come within the statutory description, but only a question of fact will arise if the facts found are capable of coming within the statutory description. In that second case, no question of law arises because, as Hill J said at 16 in Sharp Corporation of Australia Pty Ltd v Collector of Customs, the decision "will generally involve weight being given to one or other element of the facts and so involve matters of degree". To put it another way, a choice between two conclusions open on a consideration of the facts is a question of fact.
12. The Appeal Panel is satisfied that a question of law is raised.

The parties' contentions

1. The appellant contends that she is a tenant under the ordinary definition of tenant in s 3 of the Act being a person who has a right to occupy residential premises under a residential tenancy agreement. Further, she contends that the expression residential tenancy agreement is to be construed broadly.
2. The Appeal Panel was taken to the key elements of the definition in s 13 of the Act, which provides as follows: 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.
3. The appellant highlights that a residential tenancy agreement need not be in writing and may be implied and it need not grant a right of exclusive possession.
4. The appellant alternatively contends that viewed together the advertisements, various texts and the security deposit receipt satisfy the requirement for a written residential tenancy agreement between her and the respondents.
5. On the other hand, the respondents accept the decision of the Tribunal at first instance and agree that the appellant is not a tenant and reiterates that there is no written or verbal agreement between them, relying on s 10 of the Act.

Consideration

1. The issue in this appeal arises for the reason that remedies under the Act are provided for landlords and tenants. In order for the Tribunal to be able to grant a remedy to the appellant under the Act, it was necessary for her to be a tenant.
2. The expression tenant is defined broadly in s 3 of the Act to mean a person who has a right to occupy residential premises under a residential tenancy agreement. This is an exclusive, albeit broad, definition. Nevertheless s 8 of the Act identifies certain agreements to which the Act does not apply, these include an agreement under which a person boards or lodges with another person (s 8(1)(c) of the Act). Further, s10 identifies certain cases where the definition of tenant is limited.
3. The appellant contends that s 10 was not engaged because there is a residential tenancy agreement as defined in s 13 in place between the appellant and respondents. As the Tribunal did not consider that possibility, or impermissibly narrowly construed the definition of residential tenancy agreement, it is contended that the Tribunal erred.
4. The Appeal Panel is satisfied that s 10 overrides s 13, notwithstanding that s 13 is expressed to be in exclusive terms rather than inclusive terms. This is for the reason that s 10 expressly states that, when the circumstances identified in its chapeau are met, a person is only a tenant for the purposes of the Act when the circumstances described in s 10(a) or (b) are satisfied. In other words, where the enlivening circumstances described in s 10 are satisfied, the general definition of tenant does not apply and one must, relevantly to this case, be a tenant under a written agreement as required by s 10(b) of the Act.
5. In this case, the circumstances enlivening s 10 were satisfied: the appellant occupies residential premises; the residential premises are subject to a written tenancy agreement between the respondents and the landlord (the appellant accepted this to be the case); the appellant is not named as a tenant in the written residential tenancy agreement; the appellant occupies the premises together with the named tenants (i.e. the respondents). In those circumstances the appellant could, relevantly to this case, only be a tenant for the purposes of the Act if paragraph (b) of s 10 was satisfied. That paragraph provides as follows; (b) the person is a sub-tenant of a tenant under a written residential tenancy agreement with that tenant.
6. Whatever the ambit of the expression residential tenancy agreement, in order to be a tenant once s 10 is engaged, as here, there must be a written residential tenancy agreement between the named tenant (the respondents) and the other person (the appellant).
7. To the extent that the appellant contends that she is a tenant under a residential tenancy agreement according to the ordinary definitions in ss 3 and 13 of the Act and that it was not necessary for the Tribunal to be satisfied that she was a tenant under a written residential tenancy agreement, this ground must fail due to the operation of s 10 of the Act referred to above.
8. To the extent that the contention is that the expression written tenancy agreement in s 10 is to be interpreted broadly, consistently with s 13 (albeit it must be in writing) so much may be accepted. At first instance, the Tribunal adopted such a wide-ranging approach considering whether the texts and security deposit receipt could constitute the written agreement. The appellant did not suggest that there was any writing that had been ignored by the Tribunal; the contention was that a narrow approach had been adopted.
9. The Tribunal considered, on all the evidence, whether or not there was a written tenancy agreement. The Tribunal's conclusion that there was no written agreement was open on that evidence. No error has been demonstrated.

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. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 January 2016