Shapkin v The University of Sydney

Solicitors: Appellant (Self Represented) Office of General Counsel, The University of Sydney (Respondent) File Number(s): 2022/00310594 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 04 October 2022 Before: RC Titterton OAM, Senior Member File Number(s): RT 22/41926

Introduction

1. This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) against a decision made in the Consumer and Commercial Division of the Tribunal.
2. The application to the Tribunal was brought by Mr Shapkin (who is the appellant in this appeal), against the University of Sydney, which is the respondent to this appeal (the University).
3. The only issue for determination in the Tribunal proceedings was whether the accommodation arrangements between Mr Shapkin, who is a University student, and the University, were governed by the Residential Tenancies Act 2010 (NSW) (the RT Act). The application was precipitated by the University's intention to evict Mr Shapkin from that accommodation. However, the circumstances of that eviction were not relevant to the questions to be decided by the Tribunal and are not relevant to the appeal.
4. Mr Shapkin applied to the Tribunal for a declaration under s 11 of the RT Act that the agreement between himself and the University was a residential tenancy agreement to which the RT Act applies.
5. In dismissing Mr Shapkin's application, the Tribunal concluded that the RT Act did not apply to the agreement between the parties 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 Tribunal also concluded that the premises the subject of the agreement were exempt from the RT Act because they were covered by the exemption for student accommodation in cl 31 of the Residential Tenancies Regulation 2019 (NSW) (the RT Regulation). The Tribunal made the following declarations under s 11 of the RT Act: 1. The Residence Agreement (being the Residential Agreement Acknowledgment dated 19 April 2022 signed by the applicant together with the Residential Agreement Terms and Conditions referred to in the Residential Agreement Acknowledgment dated 19 April 2022) is not a residential tenancy agreement for the purposes of the RT Act. 2. The Residence is exempt from the RT Act.
6. The Tribunal also made directions for the exchange of submissions on costs.
7. The decision in its entirety is challenged by Mr Shapkin in this appeal.
8. For the reasons set out below, we have decided to dismiss the appeal.

Background

1. Mr Shapkin is a student of the University. He graduated from the Juris Doctor (JD) in 2019 and is currently enrolled in the University's Master of Laws program.
2. On 19 April 2022 Mr Shapkin signed a form entitled "Residential Agreement Acknowledgment" (RAA) in respect of a room (room 1) in a terrace house located at Darlington Terrace, in the suburb of Darlington in New South Wales (the Residence).
3. The RAA relevantly provided: You are entering into a legal agreement with the University of Sydney… to become a lodger in the Facility as follows: Term: For the period from 2.00pm on 20/04/2022 ("Commencement ("Termination Date") to and including 10.00am on 05/12/2022 ("Termination Date") Facility: Darlington Terrace (DT) Room Type: You may occupy a Single Room - Medium room in the Facility; Room Fee: You must pay the Room Fee of $243.00 for the week (or part thereof) from and including the Commencement Date to and including the Termination Date; Acceptance Fee: You must pay a non-refundable Acceptance Fee of $200; and Deposit: $972.00 You further acknowledge that the following documents comprise the Residential Agreement that you have entered into and that you have received and read a copy of each of these documents: 1. The Residential Agreement Details (General Information); and 2. The Residential Agreement Terms and Conditions You acknowledge and agree that: You have received and read a copy of this Residential Agreement Acknowledgment and the Residential Agreement Terms and Conditions (collectively referred to as the 'Residential Agreement'); … Your right to reside in the Facility is subject to the terms and conditions which are set out in the Residential Agreement By clicking the "I Agree" button and signing in the space provided below, you will be entering into a legally binding Residential Agreement with the University.
4. The document referred to in the RAA as the "Residential Agreement Terms and Conditions" (the Terms and Conditions) is a 26 page document governing the arrangements between the parties. It will be discussed in detail later in this decision.
5. References to "Residential Agreement" in this decision mean the RAA incorporating the Terms and Conditions. It was common ground at the first instance hearing that the agreement between the parties governing Mr Shapkin's accommodation arrangements was documented in the Residential Agreement.
6. Mr Shapkin shared the Residence with two undergraduate students of the University to whom the University had also granted a non-exclusive licence to reside at the Residence.
7. Following receipt of complaints from those two other undergraduate students about Mr Shapkin's conduct, on 15 September 2022, the University's Student Accommodation Services sent Mr Shapkin a letter concerning the proposed termination of the Residential Agreement in accordance with cll 8(c) and 16(c) of the Terms and Conditions, which provide for termination of the Residential Agreement without notice in certain circumstances.
8. On 18 September 2022 Mr Shapkin commenced proceedings in the Tribunal seeking an order 'that an agreement is or is not a residential tenancy agreement" under the RT Act.
9. On 23 September 2022, the University sent Mr Shapkin a notice of termination of the Residential Agreement in accordance with cll 8(c) and 16(c) of the Terms and Conditions (Notice of Termination).
10. In accordance with the notice of termination, Mr Shapkin was required to vacate the Residence by 1pm on 26 September 2022. However, the Notice of Termination relevantly stated: I understand from Student Accommodation Services that you have a large number of personal belongings and that you are having difficulties finding alterative accommodation. Accordingly, to facilitate your move and give you time to find new lodgings, the University will provide you with temporary accommodation at … [XX] Burren Street Darlington until Monday 10 October 2022, at the same rate you are currently paying for the Room. You may collect the key to the Burren Street Terrace from Security on Monday 26 September 2022. The University will also provide you with a $250 gift pay digital voucher to assist you to move your belongings.
11. On 26 September 2022, Student Accommodation Services sent Mr Shapkin an email noting that he had not collected the key to the Burren Street Terrace, that he contested the University's right to terminate the Residential Agreement, and that he had not vacated the Residence. The email also noted that Mr Shapkin had until 10am on 27 September 2022 to comply with the terms of the notice of termination and warned him that, if he failed to do so, the University would exercise its rights under the Residential Agreement.
12. On 27 September 2022, Student Accommodation Services sent Mr Shapkin an email noting that, as he had stayed at the Residence the previous night and had taken no steps to vacate the Residence, the University had decided to exercise its rights under the Residential Agreement to evict him from the Residence. The email advised that Mr Shapkin was no longer permitted to enter the Residence and that the locks had been changed. The email also advised that the University's offer of temporary accommodation at the Burren Street Terrace remained open.
13. On 29 September 2022 the matter came before the Tribunal for an urgent hearing and on 4 October 2022 the Tribunal's decision was published.
14. Since the locks at the Residence were changed Mr Shapkin has been residing elsewhere although some of his belongings remain at the Residence.

Preliminary matters

1. At the commencement of the hearing of the appeal we were asked to consider and decide on several preliminary matters. After doing so, we informed the parties that we would publish our reasons in relation to those preliminary matters when giving our final decision in the appeal. Those reasons are as follows.

Application for referral of question of law to Supreme Court

1. On 30 November 2022 Mr Shapkin lodged with the Appeal Panel registry an application pursuant to s 54 of the NCAT Act to "refer the matter to the Supreme Court on a question/s of law arising in the proceedings for the opinion of the Court" (the Referral Application).
2. The Appeal Panel has power to "refer a question of law arising in the proceedings to the Supreme Court for the opinion of the Court": NCAT Act s 54.
3. In Legal Services Commissioner v Potkonyak (No. 2) [2017] NSWCATOD 134 the Tribunal said at [12]: "As is obvious from the provisions of section 54, there is a requirement that a question of law be framed in such a way that it is capable of being referred to the Supreme Court."
4. That has not occurred in this case. Indeed Mr Shapkin's application and accompanying grounds do not identify any question of law at all. It would be inappropriate for the Appeal Panel to attempt to formulate a question of law in circumstances where no question of law is identified by the appellant and the Appeal Panel does not itself consider that any question of law arises in the appeal which requires determination by the Supreme Court.
5. For these reasons the Referral Application was refused and it was not necessary to consider the other submissions made by the University opposing the Referral Application.

Fresh Evidence

1. At the commencement of the appeal hearing, Mr Shapkin sought leave to rely upon a range of documents which had not been before the Tribunal at first instance. We refused that request and our reasons for doing so are set out below under the heading "Leave to Appeal".
2. The University also sought to adduce fresh evidence, being a copy of a title search for Lot 9 in Deposited Plan 1118985 which establishes that the University owns the Residence. The University provided no explanation for its failure to provide that document at first instance and accordingly we did not consider it appropriate to grant the University leave to rely on that document in the appeal.

Application to issue of a summons

1. The Appeal Panel has previously refused an application by Mr Shapkin to issue a summons to Rachel Brewster. We understand Ms Brewster is the head of the University's Student Accommodation Services. We have not been provided with a copy of the application but understand that the summons requested was for the production of the original building plans for the Residence.
2. On 9 December 2022 the Registrar issued a notice to the parties in relation to a request by Mr Shapkin that the Appeal Panel review its decision not to issue the summons. The Registrar informed the parties that the decision would be re-considered by the Appeal Panel constituted to hear the appeal, if appropriate.
3. At the commencement of the hearing the parties were given an opportunity to make submissions in relation to this issue.
4. Mr Shapkin submitted that the summons should be issued because the documents sought would assist to identify the original use of the Residence.
5. The University objected to the issue of the summons for the following reasons: 1. Following an earlier request by Mr Shapkin for a copy of the original building plans, the University had searched for, but been unable to locate, any such plans. Thus the issuing of the summons would be a futile exercise as the documents sought are not in the possession of Ms Brewster or the University. 2. The documents sought by Mr Shapkin are not relevant to the issues in the appeal. The original design of a building constructed in the 19th century has no bearing on the current use or intended use of the building, which is the relevant issue in this appeal. 3. Issuing the summons would necessitate an adjournment of the hearing of the appeal. This would prejudice the University as the University intends to renovate the Residence in the first quarter of 2023 and therefore there is some urgency in having the matter resolved as soon as possible.
6. Mr Shapkin said there is no urgency to finalising the appeal as the first quarter of 2023 is "months away" and he has secured alternative accommodation in the meantime.
7. Having considered the parties' submissions we refused to allow the issue of the summons for the following reasons.
8. Firstly, the documents sought to be summonsed would be fresh evidence in the appeal. Mr Shapkin would require leave to rely on such evidence in accordance with the provisions of Schedule 4, cl 12, to the NCAT Act. Mr Shapkin would therefore need to satisfy the Appeal Panel that he may have suffered a substantial miscarriage of justice because the evidence is significant new evidence which was not reasonably available at the time the proceedings under appeal were being dealt with. Mr Shapkin would be unlikely to be granted leave to rely on that evidence because: 1. The documents sought by Mr Shapkin have no relevance in this appeal. The original use and design of the building has no bearing on the issue before the Appeal Panel, which is how, for the purposes of cl 31 of the RT Regulation, the premises are currently used or intended to be used. We elaborate on this issue later in these reasons. 2. For the reasons explained in further detail below under the heading "Leave to Appeal" we do not accept Mr Shapkin's submission that he had an insufficient opportunity to obtain the documents he now seeks via summons at the time the first instance proceedings were being dealt with.
9. Secondly, the issuing of a summons would necessitate the adjournment of the hearing. It would be contrary to the guiding principle of the Tribunal set out in s 36 of the NCAT Act, which is to facilitate the just, quick and cheap resolution of the real issues in the proceedings, to adjourn the hearing for the purpose of issuing a summons in circumstances where: 1. The issue of the summons is likely to yield no documents; 2. The documents sought have no relevance in the appeal; and 3. Mr Shapkin is unlikely to obtain the leave of the Appeal Panel to rely on those documents.

Scope and nature of internal appeals

1. Internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel: s 80(2) NCAT Act.
2. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Schedule 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
3. In Collins v Urban [2014] NSWCATAP 17 (Collins v Urban), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where: … there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance.
4. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b).
5. In Collins v Urban, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.

Notice of Appeal

1. The Notice of Appeal was lodged on 17 October 2022, which is within the 14 day time period specified in cl 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (the Rules) and therefore the appeal has been lodged within time.

Grounds of Appeal

1. The grounds of appeal specified in the Notice of Appeal are: 1. The Tribunal failed to provide adequate reasons; 2. The Tribunal identified the wrong issue or asked the wrong question; 3. The Tribunal applied a wrong principle of law; 4. There was a failure to afford procedural fairness; 5. The Tribunal failed to take into account a relevant (that is, a mandatory) consideration; 6. The Tribunal took into account an irrelevant consideration; 7. There was no evidence to support a finding of fact; 8. The decision was "legally unreasonable"; 9. The Tribunal was motivated by an improper purpose.
2. We agree with Mr Shapkin that all of these grounds raise questions of law and that leave to appeal on those grounds is not required.
3. Mr Shapkin also seeks leave to appeal on the ground that he may have suffered a substantial miscarriage of justice because the decision of the Tribunal was not fair and equitable and was against the weight of evidence and because significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).

Mr Shapkin's submissions

1. Before considering the grounds of appeal we would make the following observations.
2. First, Mr Shapkin lodged 73 pages of written submissions in chief, 29 pages of submissions in reply, and dozens of pages of supporting documents. The submissions are unduly lengthy, repetitive and at times contradictory, and it is difficult to decipher many of the arguments he makes or the appealable errors which he seeks to identify. Unfortunately, his oral submissions did little to ameliorate the situation.
3. Second, we agree with the approach taken in Liang v University of Technology, Sydney [2018] NSWCATAP 285 where the Appeal Panel said: It is not necessary for us to make findings on every argument or every submission, particularly where the arguments advanced are numerous and of varying significance, and are often unsupported by any evidence at all, and we have not done so: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443; Rajski v Bainton (Court of Appeal, unreported, 6 September 1991).
4. This is particularly the case where, as is the case here, the submissions are voluminous, repetitive and obtuse, and the appellant, whilst self-represented, is legally trained.
5. Third, as was the case in Liang, we are not satisfied that many of the matters raised by Mr Shapkin in the appeal were the subject of evidence or submissions before the Tribunal. We agree with the Appeal Panel's observation in Liang (citing the plurality of the High Court in Coulton v Holcombe [1986] HCA 33 at [9]) that if issues were not raised at the hearing before the Tribunal, it is not appropriate to consider them now.
6. Accordingly, to the extent that Mr Shapkin's submissions do not clearly identify or address an error of law or an error of a type that leave to appeal should be granted, or we are not satisfied that the issues raised in his appeal were the subject of evidence or submissions before the Tribunal, we have not addressed them in this decision.

Consideration of grounds of appeal

1. Cutting across each of the grounds of appeal argued by Mr Shapkin is his submission that the Tribunal erred in its construction and application of s 8(1)(c) of the RT Act, and cl 31 of the Regulation.
2. These matters go to the heart of Mr Shapkin's appeal and thus it is appropriate to deal with these matters before turning to the remaining grounds of appeal.
3. We would start by stating that the contemporary approach to statutory construction requires both the text and the context, and purpose of the relevant statutory provision, to be considered. In SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 347 ALR 405 at [14]), the High Court said (footnotes omitted): The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.
4. We have had regard to these principals when construing s 8(1)(c) and cl 31.

Residential Agreement

1. As explained earlier in this decision, the arrangements between the parties were documented in the Residential Agreement (that is, the RAA which incorporated the Terms and Conditions). The provisions of the Residential Agreement, and in particular the Terms and Conditions, are relevant to the application of both s 8(1)(c) of the RT Act and cl 31 of the RT Regulation and therefore it is helpful to set out some of the relevant terms here.
2. The Terms and Conditions relevantly provided: 1. Grant of licence (a) The University of Sydney (ABN 15 211 513 464) (University) grants to the Resident for the Term a licence to reside in a room in the Residence as a lodger and use the Common Areas on the terms and conditions set out in this Agreement and the Resident accepts that grant. (b) The licence referred to in clause 1(a): (i) is not exclusive as against the University; (ii) does not give the Resident any tenancy, estate or interest in all or any part of the Room or the Residence; (iii) is personal and must not be assigned; and (iv) may not be sublicensed by the Resident without the prior written consent of the University. (c) The parties acknowledge that the Residential Tenancies Act 2010 (NSW) (Act) does not apply to this Agreement because this Agreement is of a kind referred to in section 8 of the Act and/or the Residence is exempted from the operation of the Act under clause 31 of the Residential Tenancies Regulation 2019 (NSW) or section 7 of the Act. … 3. Room and room allocation … (b) The Resident acknowledges that the Room is finished with the Furniture. The Resident may not add any additional furniture, furnishings, or other items (including heaters, electric blankets, lights, extra beds or mattresses) to the Room without the approval of the University; (c) Whilst the Room Type will be described in this Agreement, the location of the Room allocated to the Resident and the other residents within the Residence is within the absolute discretion of the University. (d) the University may, with not less than seven days prior notice to the Resident… move the Resident to another room of the same Room Type or to a room of no lesser standard in the Residence or in any Other Residence…at any time if the University reasonably considers it necessary or desirable … [for reasons including] … student safety or student welfare …for the effective economic use of the University's student accommodation. 4. Common Areas (a) Subject to this Agreement, the Resident may use the Common Areas for their intended purposes in common with the University and other students. The Common Areas are for the use and enjoyment of all residents of the Residence … 5. Enrolment status (a) The Resident warrants that they are a Student (or will be a Student as and from the Commencement Date) and will continue to be a student for the Term. 11. University's rights (a) The University may access the Room for any reason it considers reasonably necessary including for routine cleaning, to carry out repairs and maintenance, for security purposes, in an actual or suspected Emergency, to carry out inspections of the Room and to show the Room to prospective residents. (b) If the University intends to access the Room, it will endeavour to give the Resident reasonable notice of its intention to do so, however the University is not obliged to give such notice. …
3. The Terms and Conditions also contained a number of further provisions regulating the Resident's use and enjoyment of the premises. These included provisions: 1. requiring the Resident to: 1. keep the room in a reasonably clean and tidy state at all times: cl 8(a)(i); 2. regularly check his mailbox as "the University will not sign for any courier or mail item on the Resident's behalf": cl 8(a)(iv); 3. ensure lights and other electrical equipment are turned off when not in use: cl 8(a)(v); 4. comply with the University's policies, procedures and rules (including, without limitation, any Resident Handbook): cl 8(a)(vi); 5. comply with the reasonable directions and instructions of the University: cl 8(a)(vii); 6. complete any online educational or training module required by the University: cl 8(a)(viii); 7. notify the University of any absence from his room exceeding 48 hours: cl 8(a)(x); 1. prohibiting possession and consumption of alcohol for residents aged under 18, prohibiting "drinking games" and prohibiting the resident from doing or permitting "any other things that are inconsistent with the responsible consumption of alcohol": cl 9; 2. regulating guests, visitors and gatherings, including by requiring guests and visitors to be recorded in a guest 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: cl 8(b)(xvi) and cl 10; 3. permitting the University to withhold the resident's academic results or block the resident's access to University sources if the Resident fails to comply with his obligations under the agreement: cl 18; 4. requiring the Resident to be fully vaccinated against COVID-19 (unless medically exempted): cl 8(f); 5. permitting the University to install CCTV cameras in the common areas of the Residence: cl 23; and 6. permitting the University, in its absolute discretion, to let rooms within the Residence for casual accommodation over summer: cl 26.

Did the Tribunal err in its construction or application of s 8(1)(c)?

Construction of s 8(1)(c)

1. Section 13 of the RT Act defines a residential tenancy agreement in the following terms: 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.
2. Section 3 of the RT Act defines residential premises as follows: residential premises means any premises or part of premises (including any land occupied with the premises) used or intended to be used as a residence.
3. Section 8(1)(c) of the RT Act provides that the Act does not apply to "an agreement under which a person boards or lodges with another person".
4. The expression "a person who boards or lodges with another person" is not defined in the RT Act. In Pupuke v Stratford [2016] NSWCATAP 7 (Pupuke) at [20] - [23] the Appeal Panel stated at [20] that the meaning of the expression is to be derived from case law. The Appeal Panel referred to the test set out in Pryor v Costa & Maroulis (Tenancy) [2005] NSWCTT 555 (Pryor), where the Tribunal's predecessor considered in detail the relevant authorities and concluded at [34]: In summary, the occupier must have been granted, in consideration for value, the right to occupy premises, part of which may be exclusive, while the owner still retains, personally or by a servant, power to reprove all occupants who do not submit to the owner's will with regard to any matter touching upon the premises. The owner must remain the constant, conspicuous and prevailing authority over the premises on all matters.
5. The Appeal Panel considered the impact of the Boarding Houses Act 2012 (NSW) (which was introduced after Pryor) and concluded (at [23]) that the introduction of that legislation did not alter the test set out in Pryor, namely: …for an occupant to be a boarder or lodger the owner "must remain in possession and retain his quality as master of the house, reserving to himself the general control and dominion over the whole, although he may have agreed to give to the other exclusive enjoyment of the occupation of part".
6. Mr Shapkin says he was not a boarder or lodger and relies on the decision of the Appeal Panel in Hurley v Hurley [2018] NSWCATAP 283 (Hurley) where the Appeal Panel said at [20]: The relevant provision can only be section 8 (1) (c). Whether this applies would depend upon whether the appellant occupied the premises under an arrangement which could be characterised as board and lodging. In common terms board and lodging refers to the provision of both accommodation and food. There is simply no evidence provided by the appellant to that effect. Even if there was such evidence, it is arguable that once [the tenant's] mother died and he continued to stay in the property any arrangement of that kind in a practical sense would have come to an end.
7. It is not entirely clear from Mr Shapkin's submissions how the decision in Hurley assists his case but in any event, to the extent that Hurley is inconsistent with Pupuke, we prefer the decision in Pupuke. Our reasons for this include that in Pupuke the central issue in the appeal was the proper construction of s 8(1)(c) and the Appeal Panel gave considerable attention to the issue, including by discussion of relevant caselaw and examination of the impact of the Boarding Houses Act 2012 (NSW). Hurley contained no such discussion and indeed included only one sentence, without citation of any authority, in relation to the construction of the provision. For this reason, we prefer the approach taken in Pupuke, which is that an assessment of the whole of the arrangement between the parties is necessary to ascertain whether it is a boarder or lodger arrangement.
8. Moreover, in our view the Appeal Panel in Hurley erroneously focussed on the meaning of the term "board and lodging" (emphasis added). This is not the language used in s 8(1)(c) which requires consideration of whether a person "boards or lodges" (emphasis added) with another person. Having regard to the ordinary meaning of section 8(1)(c), a person may be a lodger without necessarily being a boarder. The Appeal Panel did not make this distinction in Hurley.
9. We would add that neither Pupuke nor Pryor addressed the difference between the meaning of the terms "boarder" and "lodger". Rather they focussed on the collective characteristics of arrangements under which a person "boards or lodges".
10. We pause to observe that "boarding" and "lodging" have slightly different meanings. Our understanding of the terminology is that "boarding" is in effect a subset of "lodging" where the lodger, in addition to receiving accommodation, generally receives food or meals as part of his or her living arrangements (See Noblett & Mansfield v Manley [1952] SASR 155 at [158]). This is consistent with the ordinary meaning of the term "board" as reflected in the following dictionary definitions: 1. to occupy a room in a dwelling, often with meals provided, in return for payment: Macquarie Dictionary (Macmillan Publishers Australia, 2022); 2. to provide (a lodger, etc.) with daily meals; now generally to supply with both food and lodging at a fixed rate: Oxford English Dictionary (Oxford University Press, 2022).
11. As the University did not contend that Mr Shapkin was a boarder for the purposes of s 8(1)(c) there is no need for us to address this issue further in this decision.
12. The appellant also relies on a decision of the Tribunal's predecessor in Steinle-Davies v Barry (Tenancy) [2013] NSWCTTT 350 (16 July 2013) (Steinle-Davies) where the Tribunal held that a share house arrangement did not constitute a boarder or lodger arrangement for the purposes of s 8(1)(c). To the extent that the decision is inconsistent with Pupuke we prefer Pupuke because it is a decision of the Appeal Panel as opposed to a single member decision of the Tribunal and because, unlike in Pupuke, the decision in Steinle-Davies does not purport to provide a decisive or thorough analysis of the construction of s 8(1)(c).
13. In any case, the facts of that case are distinguishable from the present, including because in Steinle-Davies there was no written agreement between the parties and because the case involved the tenant responding to a private advertisement for accommodation.
14. For these reasons we agree with the construction of s 8(1)(c) enunciated in Pupuke.

Application of s 8(1)(c)

1. Having regard to the following features of the Residential Agreement, we agree with the Tribunal's conclusion that the agreement constituted a lodging arrangement for the purposes of s 8(1)(c).
2. The Tribunal correctly held that the fact that there was a provision of the agreement stating that Mr Shapkin is a lodger is not determinative of characterising the arrangement between the parties. Labels are not determinative of, nor relevant to, the characterisation process. Determination of the character of the parties' relationship requires an evaluation of the parties' rights and obligations: Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 (Personnel) at [63] - [64].
3. Whilst no food or meals were provided by the University to Mr Shapkin, the agreement provided for a range of other services to be provided to Mr Shapkin in addition to his right to lodge in a private bedroom and use the common areas of the Residence. These included provision of furniture (cl 3(b)), utilities (cl 6(e)) and routine cleaning (cl 11).
4. Moreover, the Residence Agreement 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: 1. Mr Shapkin was precluded from adding any additional furniture, furnishings, or other items (including heaters, electric blankets, lights, extra beds or mattresses) to his room without the approval of the University. 2. The location of the room allocated to Mr Shapkin and the other residents was within the absolute discretion of the University. 3. The University was entitled to move Mr Shapkin to another room within the Residence or indeed to any other premises operated by the University. 4. The University was entitled to access Mr Shapkin's room if it considered it reasonably necessary. 5. Whilst the University agreed to "endeavour to give the Resident reasonable notice" of its intention to access the room, it was not obliged to give such notice. 6. The University was permitted to install CCTV cameras in the common areas of the Residence. 7. There were a number of rules restricting socialising and visitors at the Residence. 8. Mr Shapkin was required to notify the University of any absence of more than 48 hours. 9. Mr Shapkin was required to be vaccinated against COVID-19 (unless medically exempted).
5. We consider that these and other features of the arrangement meant that the University had sufficient "mastery and control" over the Residence, in the manner described in Pupuke and Pryor, such that the arrangement between the parties fell within the exception in s 8(1)(c).
6. Mr Shapkin submitted that the Tribunal misapplied s 8(1)(c) because there was no finding that the University maintained a permanent physical presence at the Residence. This submission represents a misunderstanding of the relevant authorities. Whilst a physical presence by the owner may be indicative of a lodging arrangement, a requirement for a physical presence would inappropriately limit what is meant by the stipulation that the owner "remain in possession and retain his quality as master of the house". It is the legal right to possession, not the physical fact of exclusive "possession" or occupation, that is decisive: Swan v Uecker (2016) 50 VR 74 at [36] (Croft J quoting McHugh J in Western Australia v Ward (2002) 213 CLR 1 at [502] - [504]).
7. Here, whilst the University did not have a physical presence at the Residence, the terms of the Residence Agreement, including the combination of the University's right to enter the Residence at any time, to select the room to which Mr Shapkin was allocated, to move him to a different room or an entirely different residence, to install CCTV cameras, to require him to notify the University of any absences and to restrict certain types of social activities, together with the provision of cleaning and other services, were consistent with the University remaining in possession and retaining its quality as "master of the house".
8. Mr Shapkin also made submissions to the effect that the Tribunal misapplied s 8(1)(c) because it did not take account of the fact that the University did not always enforce the terms of its agreement with Mr Shapkin. He says house rules were not enforced and guests stayed overnight whenever they wished. The effect of this submission is that the lack of enforcement by the University meant that, despite the terms of the Residence Agreement, it did not have sufficient "mastery or control" over the premises for the purpose of s 8(1)(c). We would make the following comments in relation to this submission.
9. Firstly, Mr Shapkin has not taken us to any evidence which was before the Tribunal regarding the enforcement or otherwise by the University of the terms of the Residence Agreement.
10. Secondly, we agree with the University's submission that if, as was the case here, the parties' rights and duties are comprehensively committed to a written contract, the legal rights and obligations established by the written contract will determine the character of the relationship between the parties: Personnel at [43]-[44]. The exception to this will be where the validity of the written contract is challenged as a sham, or where there is an assertion that the terms of the contract have been subsequently varied or waived or are the subject of an estoppel: Personnel at [43]. None of those limited exceptions are suggested to have relevance in this case and therefore subsequent conduct by the parties is not relevant to the characterisation of the agreement between the parties as a lodging arrangement. This approach is consistent with that taken by the Appeal Panel in Pupuke when it analysed the terms of the written agreement between the parties at [25] to ascertain whether it could be characterised as a boarder or lodger arrangement.
11. Mr Shapkin also submitted that the Tribunal misapplied s 8(1)(c) because it did not address the fact that the evidence established that Mr Shapkin had "exclusive use" of his bedroom and therefore could not have been a lodger. He says each resident had his or her own room key and could exclude other residents or allow guests.
12. We do not agree with this submission. The Tribunal did acknowledge Mr Shapkin had "exclusive use of his room in a practical way". In any case, an exclusive right to enjoy part of the premises is not determinative of the issue. As the Appeal Panel said in Pupuke at [23]: … the owner must remain in possession and retain his quality as master of the house, reserving to himself the general control and dominion over the whole, although he may have agreed to give to the other exclusive enjoyment of the occupation of part.
13. What is relevant is whether the owner still retains power to reprove all occupants who do not submit to the owner's will with regard to any matter touching upon the premises: Pupuke at [20].
14. Thus, even where a person is granted exclusive use over part of the premises, the arrangement may still be a boarder or lodger arrangement so long as the owner reserves "to himself the general control and dominion over the whole". In this case, whilst as a practical matter Mr Shapkin may have had exclusive enjoyment of his bedroom, and the room could not be accessed by others, as a legal matter the licence granted to him was not exclusive against the University. This was not only explicitly stated in s 1(b) of the Residential Agreement, but also apparent from the many terms of the agreement which afforded the University "control and dominion" over the whole of the premises. As explained above, the Residential Agreement imposed significant restrictions on the way in which Mr Shapkin could use and enjoy both his room and the common area.

Overview of the construction and application of s 8(1)(c) of the RT Act

1. The principles set out above in relation to the construction and application of s 8(1)(c) can be summarised as follows: 1. For an occupant to be a boarder or lodger the owner must remain in possession and retain his quality as "master of the house", reserving to him or herself the general control and dominion over the whole, although the owner may have agreed to give to the other exclusive enjoyment of the occupation of part: Pupuke at [23]. 2. The lack of provision of food or meals is not determinative of the issue although a boarder, as opposed to a lodger, is more likely to be provided with food or meals as part of the living arrangement. 3. Labels are not determinative of, nor relevant to, the process of characterising the agreement. Determination of the character of the parties' relationship requires an evaluation of the parties' rights and obligations: Personnel at [63] - [64]. 4. A physical presence is not a requirement of a lodging arrangement. It is the legal right to possession, not the physical fact of exclusive "possession" or occupation, that is decisive: Swan v Uecker (2016) 50 VR 74 at [36] (Croft J quoting McHugh J in Western Australia v Ward (2002) 213 CLR 1 at [502] - [504]). 5. If the parties' rights and duties are comprehensively committed to a written contract, the legal rights and obligations established by the written contract will determine the character of the relationship between the parties: Personnel at [43]-[44]. The exception to this will be where the validity of the written contract is challenged as a sham, or where there is an assertion that the terms of the contract have been subsequently varied or waived or are the subject of an estoppel: Personnel at [43]. 6. An agreement may be a lodger arrangement even if the lodger has exclusive enjoyment over part of the premises. What is relevant is whether the owner reserves to him or herself the "general control and dominion" over the whole of the premises, even if the other person has exclusive enjoyment of part of the premises: Pupuke at [23].

Conclusion in relation to construction and application of s 8(1)(c)

1. For these reasons we see no error in the Tribunal's conclusion that the agreement between the parties was one under which Mr Shapkin was a lodger for the purposes of s 8(1)(c).

Did the Tribunal err in its construction or application of cl 31 of the Regulation?

Construction of cl 31

1. Clause 31 of the Regulation provides as follows: 31 Residential colleges and halls of residence in educational institutions (1) Residential premises used, or intended for use, principally as a residential college or hall of residence for students of an educational institution are exempt from the operation of the Act if the premises are - (a) located within the institution, or (b) owned by the institution, or (c) provided for that use by a person or body that provides the premises under a written agreement with the institution to provide accommodation to students of the institution. (2) Despite subclause (1), a part of residential premises referred to in subclause (1) is not exempt from the operation of the Act if - (a) the landlord and the tenant agree in writing that the part of the residential premises is to be subject to the Act, or (b) allocations for the part of the residential premises have been applied for, or provided, under the National Rental Affordability Scheme Act 2008 of the Commonwealth, unless the application is withdrawn or is unsuccessful. (3) In this clause - educational institution means premises used for education, that are - (a) a school, or (b) a tertiary institution that provides formal education and is constituted by or under an Act.
2. Accordingly, unless one of the exceptions in cl 31(2) applies, residential premises will be exempt from the operation of the RT Act if they are used, or intended for use, principally as a residential college or hall of residence for students of an educational institution and they are: 1. Located within the institution; 2. Owned by the institution; or 3. Provided for that use by a person or body that provides the premises under a written agreement with the institution to provide accommodation to students of the institution.
3. It was not in dispute that the University is an educational institution for the purposes of cl 31 and that the Premises are not a residential college. Nor was it suggested that either of the exceptions in cl 31(2) apply in this case. Thus it is not necessary to consider the construction of those terms in this appeal. The thrust of Mr Shapkin's submissions in relation to the construction of cl 31 is that the Tribunal misconstrued the meaning of the term "used, or intended for use, principally as a … hall of residence for students of an educational institution".
4. The term 'hall of residence' is not defined in the RT Act or the RT Regulation and the Explanatory Memoranda for the Regulation and its predecessor, the Residential Tenancies Regulation 2010, do not provide any guidance as to the meaning of the term.
5. The Tribunal below, and the parties, referred to a range of dictionary definitions of the term "hall of residence". The dictionary definitions include: 1. "a building for residence, as at a university, college, etc": Macquarie Dictionary (Macmillan Publishers Australia, 2022); and 2. "a place where students live at a college or university": Merriam-Webster.com Dictionary (Merriam-Webster Incorporated, 2022);
6. Having regard to the ordinary meaning of the term "hall of residence", and the purpose and context of cl 31, we are of the view that the term "residential premises used, or intended for use, principally as a … hall of residence for students of an educational institution" properly construed, means residential premises which: 1. have been designated by the owner or operator of the premises specifically for the purpose of accommodating students of an educational institution; and 2. are administered in such a way that the primary use of the premises is to accommodate such students.
7. Our reasons for this include the following.
8. Firstly, the purpose of the provision is to exempt designated student accommodation from the operation of the RT Act.
9. Secondly, the exemption in cl 31 is analogous to other exemptions afforded to certain premises by the RT Act and the RT Regulation. These include (per s 7 of the Act): premises used to provide residential care or respite care, serviced apartments, premises used as a hotel or motel, premises used as a backpackers' hostel and any part of a club used for the provision of temporary accommodation. In each of these instances the operator of the relevant premises must manage or administer the premises in a certain way if the premises are to fall within the relevant exemption. For example, premises where backpackers happen to live will not qualify for the exemption. What is necessary is that the premises are administered by the owner or operator as a backpackers' hostel.
10. Thirdly, the terminology used in the provision, including the use of the term of art "hall of residence", supports the interpretation that there must be more than just an incidental use of the premises for student accommodation and that the premises must be designated and managed or administered for this purpose.
11. For these reasons the exemption in cl 31 will only apply if the entity making the relevant premises available as accommodation has designated the premises as accommodation for students and administers the premises with a view to fulfilling the purpose of providing accommodation for students. In most cases that entity will be the educational institute itself or a person who has contracted with the university to make the premises available. In some cases there may be premises located on campus which are owned by a third party but which fall within the exception because the person offering the premises does so with the primary purpose of accommodating students of the educational institution.
12. It would not be sufficient, for example, for a university to simply rent an investment property to students for income purposes and then claim that the premises are exempt under cl 31. To qualify for the exemption the educational institution or third party offering the premises must have designated the premises as student accommodation, and administer or manage them in such a way that they fulfil that purpose.
13. The appellant submitted that to qualify for the exemption in cl 31 the premises must house a large number of students (although he did not specify the number) and must have characteristics of communal living (such as a communal dining hall). In this regard he submitted that the term "hall of residence" is synonymous with the term "dormitory" which he says is the US equivalent of the term "hall of residence". Whether or not this may be the case, we are not convinced that in the context of Australian legislation the term "hall of residence" must be read to mean "dormitory". Moreover, the appellant's own submissions refer to a range of dictionary definitions for the term "dormitory" many of which are not inconsistent with the construction we have given to the term "hall of residence".
14. We agree with the conclusion of the Tribunal that the proper construction of cl 31 does not require there to be a minimum number of students or for there to be characteristics of communal living.
15. Mr Shapkin also made submissions regarding the other half of the terrace building which includes the Residence. That part of the building is owned privately by Mr Terence Lord, who provided a statement in the proceedings. We understand Mr Shapkin's submission to be that if the Tribunal's construction is correct, and if Mr Lord rented his premises to students, the premises would be exempt from the RT Act. He says that this cannot have been the intention of the legislature. We do not consider that this submission reflects a correct understanding of the construction of cl 31. As explained above, what is necessary is not just an incidental leasing of the premises to students but the designation of the premises as student accommodation and their administration as such. Even assuming Mr Lord's premises are located on the University's campus (which was not established by the evidence before the Tribunal), an incidental leasing by him of accommodation to students would not fall within the requirements of cl 31.
16. We also understand Mr Shapkin to be saying that, as half of the building containing the Residence is privately owned by Mr Lord who lives there and is not a student, the Residence cannot be a hall of residence. This argument is misconceived as it attempts to unduly restrict the meaning of "residential premises". The definition of the term in s 3 of the RT Act is broad and clearly contemplates that part of a building may be residential premises for the purposes of the RT Act and the RT Regulation, including cl 31.

Application of cl 31

1. The next question to determine is whether the Tribunal misapplied clause 31.
2. The findings of fact made by the Tribunal relevantly included the following: 1. The University owns the Residence which it purchased in 1973; 2. The Residence is managed and operated by the University through its Student Accommodation Services; 3. All students using University student accommodation managed by Student Accommodation Services sign a licence with the University on comparable terms and conditions to that signed by the Mr Shapkin; 4. The University owns 39 properties on the same road as the Residence, most of which are used for student accommodation; 5. The University currently owns and operates approximately 1900 student accommodation beds/premises with several distinct student accommodation facilities/residences managed by Student Accommodation Services; 6. The Residence is used exclusively for the provision of accommodation to students of the University; 7. In addition to their right to lodge in a private bedroom and use the common areas, the University provides students who reside in the Residence with furniture, utilities, maintenance, a weekly cleaner for the common areas, Student Wellbeing services and access to the University's security services 24 hours a day, seven days a week. 8. Mr Shapkin is a student currently enrolled at the University and shared the Residence with two undergraduate students of the University, to whom the University had also granted a non-exclusive licence to reside at the Residence.
3. We would add to this that the Residential Agreement between the parties (which the Tribunal found is on comparable terms to the agreements between the University and other student residents) includes numerous terms which reflect that the Residence is designated and administered as accommodation for students. These include a warranty that the Resident is a student and will continue to be a student for the term, restrictions on the Resident socialising during exam periods, the University's right to withhold academic results or block the Resident's access to student resources if the Resident fails to comply with the agreement, and the right to relocate the Resident for reasons including "for reasons of student safety or student welfare" and "for the effective economic use of the University's student accommodation".
4. We are satisfied that the above facts are sufficient to establish that the Residence is owned by the University, that it exclusively accommodates students of the University, that the Residence has been designated by the University specifically for the purpose of accommodating students of the University, and that the Residence is administered in such a way (in this case by the University's Student Accommodation Services) that the primary use of the premises is to accommodate such students.
5. Accordingly, we see no issue with the Tribunal's conclusion that the Residence is exempt from the RT Act by virtue of cl 31 of the Regulation.
6. We note that Mr Shapkin made a number of submissions regarding the history of the Residence, the regulation and registration of the Residence by Sydney City Council, and the classification of the Residence under the building classification code. We understand the effect of those submissions to be that the classification, regulation and registration of the Residence are inconsistent with the Residence being used or intended to be used as a hall of residence for students. We would respond to these submissions by saying firstly, no evidence regarding such matters was before the Tribunal and for the reasons given below, we did not permit Mr Shapkin to rely on such new evidence at the hearing of his appeal. In any event, even if such evidence had been admitted, it would not have affected the characterisation of the Residence pursuant to cl 31 of the Regulation. What is relevant to that exercise are the findings as to the way in which the premises are, as a practical matter, currently used or intended to be used. For reasons explained, we are satisfied that the Tribunal correctly applied the facts to the construction of cl 31 in concluding that the Residence was exempt from the operation of the RT Act.

Remaining grounds of appeal

1. We are satisfied that the analysis above adequately disposes of grounds of appeal 2 (The Tribunal identified the wrong issue or asked the wrong question), 3 (The Tribunal applied a wrong principle of law), 5 (The Tribunal failed to take account of a relevant consideration), 6 (The Tribunal took into account an irrelevant consideration) and 8 (The decision was "legally unreasonable"). Whilst it also touches on many of the points made by Mr Shapkin in relation to the balance of the grounds of appeal, there are some further points made by him in relation to those grounds which we will now address.

Ground 1 - Did the Tribunal fail to provide adequate reasons?

1. The Appeal Panel has recently set out the relevant principles in Volkswagen Group Australia Pty Ltd v Saad [2022] NSWCATAP 133 at [58] as follows: The NSW Court of Appeal in New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 (per Bell P) helpfully set out the principles relevant to adequacy of reasons at [66] - [77]. They are summarised as follows: (1) The function of the appeal court is to determine not the optimal level of detail required in reasons for a decision but rather the minimum acceptable standard. (2) The quantity (or detail) of reasons, necessary for those reasons to be adequate may vary both with the nature of the decision maker, i.e. whether or not it is a court or tribunal, and, if the latter, possibly the type of tribunal, and the nature of the question being decided. (3) As to the quality of reasons, it is generally accepted that the sheer volume of work undertaken by tribunals is such that a perhaps more relaxed standard of review of reasons is appropriate than may be the case when an appellate court is hearing an appeal from another court. (4) Even in the less formal setting of a tribunal there are certain minimum characteristics that a Tribunal's reasons must possess. These are supplied, in relation to the Tribunal, by s 62(3) of the NCAT Act which, requires there to be set out in reasons (when requested by a party): (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, and (c) the reasoning processes that lead the Tribunal to the conclusions it made. (5) At least a basic explanation of the fundamental reasons which led the Tribunal to its conclusion is necessary. (6) It is not necessary for a judge to detail each factor which he or she has found to be relevant or irrelevant. Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient if the inference as to what is found is appropriately clear. (7) Reasons need not be elaborate. (8) Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole. (9) The court should not read passages from the reasons for decision in isolation from others to which they may be related. (10) The reasons must be read fairly and as a whole. (11) The reasons recorded ought not to be inspected with a fine tooth-comb attuned to identifying error. (12) There should be a degree of tolerance for looseness in the language of the Tribunal, unhappy phrasing of the tribunal's thoughts or verbal slips.
2. In this case the Tribunal's reasons: 1. set out clearly and in some detail, including at [14]-[35] the Tribunal's findings on material facts including in relation to the ownership of the Residence, the terms of the Residential Agreement and the management of the Residence; 2. refer at [10]-[13] to the evidence on which those findings were based, noting that the underlying facts were "common ground"; 3. sets out the Tribunal's understanding of the applicable legislation at [36]-[39]; and 4. after setting out an overview of the parties' respective submissions, provides, at [60]-[79], an explanation of the reasoning processes that led the Tribunal to reach the conclusions it made regarding the application of s 8(1)(c) of the RT Act and of cl 31 of the RT Regulation.
3. Applying the principles summarised in Volkswagen, we are not satisfied that the reasons for decision were inadequate in part or at all.
4. We will now comment on some of the specific criticisms Mr Shapkin made of the Tribunal's reasons:
5. Mr Shapkin complains that the decision did not refer to the location and/or the address of the premises. This is not correct. The Tribunal stated at [27] that the premises were located on Darlington Rd, Darlington. In any event, the address of the premises was not a material fact in these proceedings because, as the Tribunal explained at 79: I was not entirely persuaded that the Residence was located within "the institution" for the purposes of cl 31 of the Regulation. However, as I did accept that the Residence was owned by the University, and paragraphs (a), (b) and (c) of cl 31 are all alternatives, it was not necessary to determine this point.
6. Mr Shapkin suggests that the Tribunal did not adequately explain the reasoning process for concluding that the Residence was a hall of residence for the purpose of cl 31 of the RT Regulation. We do not agree. Reading the decision fairly, and as a whole, we are satisfied that the Tribunal has adequately explained its reasons for concluding that the Residence was covered by cl 31, including by explaining its understanding of the meaning of cl 31, and explaining how it applied that meaning to the factual findings regarding the Residence.
7. Mr Shapkin's submission that the Tribunal provided "no authority, no evidence, nor any other material … for the Tribunal to rely on to make a finding of fact … that a hall of residence requires no minimum number of students" is misconceived. The Tribunal's conclusion that there is no minimum number of students required for a hall of residence was not a finding of fact but rather a determination as to the proper construction of cl 31 of the RT Regulation. In any event, the decision makes clear that the basis for this conclusion is that none of the various dictionary definitions cited "have any quantitative minimum of how many students are required to constitute a hall of residence".
8. Mr Shapkin's submits that the Tribunal did not identify the "other person or host who is in continuous occupation or possession of the premises" for the purposes of establishing a lodger arrangement pursuant to s 8(1)(c) of the RT Act. This submission is also misconceived. Reading the decision as a whole, including the Tribunal's references to the services and utilities provided by the University and the nature of the legal relationship between the University and Mr Shapkin, it is plain that the Tribunal identified the person with whom Mr Shapkin lodged as being the University.
9. Mr Shapkin says that the decision did not adequately address his evidence regarding possession of the key to his room. He says each resident at the Residence had their own room key and could exclude other residents or allow guests and that this was a "crucial material fact that was not adequately addressed by the Tribunal in its reasoning process … that the tenant did not have exclusive possession of mastery or control over his own room". However, for the reasons explained above, Mr Shapkin's exclusive enjoyment is not determinative of the issue. In any event the Tribunal did refer, at [45], to Mr Shapkin's evidence regarding his room key and addressed this submission when it acknowledged at [65] that Mr Shapkin "had exclusive use in a practical way", before going on to explain why Mr Shapkin was nonetheless a lodger. We see no issue with the adequacy of reasons in this regard.

Ground 4 - Was there a failure to afford procedural fairness?

1. Mr Shapkin's ground of appeal under this heading in large part constitutes a further criticism of the adequacy of the Tribunal's reasons for decision. For the reasons already addressed, we are satisfied that the Tribunal's reasons were adequate.
2. Mr Shapkin also asserts that there was a denial of procedural fairness because the Tribunal incorrectly shifted the "burden of proof" from the University to Mr Shapkin.
3. As the Court said in McDonald v Director General of Social Security [1984] FCA 57; (1984) 1 FCR 354 (per Woodward J) when discussing the concept of "onus of proof": The use outside courts of law of the legal rules governing this part of the law of evidence should be approached with great caution. This is particularly true of an administrative tribunal which, by its statute "is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate" (AAT Act s.33(1)(c)). Such a tribunal will still have to determine practical problems such as the sequence of receiving evidence and what to do if it is unable to reach a clear conclusion on an issue, but it is more likely to find the answer to such questions in the statutes under which it is operating, or in considerations of natural justice or common sense, than in the technical rules relating to onus of proof developed by the courts.
4. These comments also apply to the Civil and Administrative Tribunal which has power to determine its own procedure in relation to any matter before it, is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice (NCAT Act s 38(1) and s 38(2)).
5. Mr Shapkin has pointed to nothing in the RT Act or any other applicable legislation which supports his contention that the University bore the onus of proof in relation to the question before it, which was whether or not the agreement between the parties "is or is not a residential tenancy agreement". We agree with the approach in McDonald that in such a case, it is not helpful to approach the issue in terms of who bears the onus of proof, but rather to consider whether there has been any denial of procedural fairness in the approach taken by the Tribunal in deciding that matter.
6. The Tribunal is required to conduct its hearings in a procedurally fair manner and take such measures that are reasonably practical to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings (s 38(2) and (5)(c) of the NCAT Act).
7. It is uncontroversial that procedural fairness requires that both parties have a reasonable opportunity to present their case (Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 at [40]; Sullivan v Department of Transport [1978] FCA 48; (1978) 20 ALR 323 at 343).
8. The crux of Mr Shapkin's submission in this regard appears to be that he was not given a sufficient opportunity to address the respondent's submissions and evidence regarding its case that the agreement was exempt under s 8(1)(c) of the RT Act and that the premises were exempt under cl 31 of the RT Regulation. He says that he only received the University's documents regarding these issues several hours before the start of the hearing.
9. However, as discussed below under the heading "Leave to Appeal", Mr Shapkin has provided no submissions as to what happened at the hearing including whether he raised this issue with the Tribunal Senior Member or asked for an adjournment to allow him to deal with the University's documents.
10. An opportunity forgone, but reasonably available, does not demonstrate breach of procedural fairness; and it must be shown that the party lost an opportunity to put any information or argument before the decision maker, or otherwise suffered detriment (Italiano v Carbone & Ors [2005] NSWCA 177 at [88]). Mr Shapkin had a reasonable opportunity to raise this issue at the hearing and failed to do so.
11. In any event, the applicable legal test is whether Mr Shapkin suffered practical injustice by reason of the University's late submission of documents (see Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at 443 [38]; Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex parte Lam (2003) 214 CLR 1 at 14 [37]). Mr Shapkin has submitted that had he had more time, he would have obtained and tendered the various additional documents he sought to submit to the Appeal Panel. For the reasons explained elsewhere in this decision, we consider those additional documents to be irrelevant to the tasks of characterising the Residential Agreement and the Residence. Accordingly, we are not satisfied that any practical injustice occurred as a result of the late submission of documents by the University.
12. For these reasons this ground of appeal fails.

Ground 7 - Was there no evidence to support a finding of fact?

1. Mr Shapkin says there was no evidence to support the following findings of fact: 1. That the Residence is owned by the University; 2. That the Residence is located within the University.
2. With regard to the first point, the evidence before the Tribunal regarding the ownership of the Tribunal was an affidavit of Ms Feehan affirmed on 29 September 2022. In the affidavit Ms Feehan relevantly states: 1. she has been employed as a solicitor at the University since 2017; 2. she has prepared the affidavit "based on my responsibilities and experience as a Solicitor at the University, and my review of the relevant documents held by the University"; and 3. the Residence was purchased by the University in 1973 from a private vendor.
3. Ms Feehan was not cross-examined by Mr Shapkin and Mr Shapkin provided no evidence controverting Ms Feehan's evidence. Indeed the Tribunal stated at [69], "Mr Shapkin did not dispute that the University owned the residence".
4. The fact in question was based on the unchallenged evidence of a solicitor employed by the University. Such a person would be expected to be familiar with the University's real property interests. Moreover, the fact was not challenged by Mr Shapkin. Indeed in Mr Shapkin's written submissions in chief which were before the Tribunal Mr Shapkin explicitly acknowledged that the University owned the Residence.
5. In such circumstances it cannot be said that there was no evidence to support this finding of fact.
6. With regard to the location of the Residence, the Tribunal declined to make a finding in relation to this issue explaining that because it had accepted that the University owned the Residence, and paragraphs (a), (b) and (c) of cl 31 are all alternatives, it was not necessary to determine this point.
7. Mr Shapkin's submission in this regard is therefore misconceived.

9 Was the Tribunal motivated by an improper purpose?

1. The basis for this ground of appeal is difficult to decipher but we understand Mr Shapkin is suggesting bias on the part of the Tribunal Senior Member.
2. An allegation of actual bias is a heavy onus to discharge: per French J in Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87 at 106, 107, cited with approval by Gleeson CJ and Gummow J in Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at 520. An allegation of actual bias must be distinctly made, clearly proven and supported by cogent evidence. A finding of actual bias should not be made lightly: South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 at [97].
3. Mr Shapkin has made no distinct allegation of actual bias by the Senior Member and has not referred us to any evidence at all which might support a conclusion that the Tribunal was motivated by bias, ill-intention, animosity or some other improper purpose.
4. This ground of appeal must fail.

Significant new evidence

1. Mr Shapkin says he may have suffered a substantial miscarriage of justice because significant new evidence has arisen which was not reasonably available at the time the proceedings were being dealt with.
2. The additional evidence on which Mr Shapkin seeks to rely includes: 1. extracts from the National Construction Code; 2. correspondence regarding the prospective sale of the premises owned by the University; 3. materials regarding the location, ownership and usage of various buildings within the University campus; 4. correspondence regarding the Residence's classification of use by the City of Sydney Council; 5. extracts from a research paper regarding the definition of "hall of residence"; 6. an extract from www.realestate.com.au regarding the definition of "duplex"; 7. a web post from law firm AI Law regarding the definition of "hall of residence"; 8. an extract from the web page of the University regarding accommodation options provided by it; and 9. a statement affirmed by Mr Shapkin which contains information and attaches supporting documentation in relation to various matters including features of other residences available to students of the University, features of the Residence, the ownership of the other half of the duplex building in which the Residence is located and planning information regarding the residence.
3. Mr Shapkin says he was unable to provide this evidence at the first instance hearing because he did not receive the University's submissions or supporting documentation until several hours before the hearing and therefore did not have an adequate opportunity to respond to the University's case, including by obtaining and submitting these additional documents.
4. We do not accept this explanation for the following reasons: 1. Firstly, it is patently clear from Mr Shapkin's written submissions in chief which were lodged prior in the first instance proceedings that he was aware in advance of receiving the University's documents (ie well before the morning of the hearing) that a key issue at the hearing would be whether his arrangement with the University was exempt from the RT Act because of s 8(1)(c) of the RT Act or cl 31 of the RT Regulation. 2. In any case, as discussed earlier in this decision, had Mr Shapkin had a legitimate concern that he needed more time to respond to the University's documents, he could have raised this issue with the Tribunal and sought an extension of time for the filing and serving of evidence, or an adjournment of the hearing date. There is nothing before us to establish that Mr Shapkin took such steps.
5. In any event, it is not apparent to us how the fresh evidence furthers Mr Shapkin's case. The evidence on which he seeks to rely largely relates to the classification and regulation of the Residence, and to the history and use of other premises managed by the University. Such information does not assist to characterise the agreement between the parties for the purposes of s 8(1)(c) of the RT Act, or to characterise the actual use or intended use of the Residence for the purposes of cl 31 of the RT Regulation. To the extent that the fresh evidence involves research materials regarding the meaning of "hall of residence", those materials appear to be from international sources and do not include the authors' qualifications or the context of the publications. They are of limited assistance in construing the meaning of the term in an Australian context.
6. We are therefore not satisfied that the fresh evidence on which Mr Shapkin seeks to rely is either significant or new, nor are we satisfied that it is evidence which was not reasonably available at the time the proceedings were being dealt with.

Weight of evidence/Decision not fair and equitable

1. Mr Shapkin submits that the Appeal Panel should grant him leave to appeal on the basis that he may have suffered a miscarriage of justice because the decision was not fair and equitable or was against the weight of evidence.
2. A decision under appeal can be said to be against the weight of evidence where the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal at first instance that it can be said that the conclusion was not one that a reasonable Tribunal Member could reach: Collins v Urban at [77].
3. Mr Shapkin's submissions in relation to these matters take the form of an extensive commentary which implicitly invite this Appeal Panel to simply substitute the factual findings preferred by him for those made below without any cogent explanation as to how the findings made by the Tribunal were not ones that a reasonable Tribunal Member could reach on the basis of the totality of the evidence before it.
4. In any event, much of the evidence which Mr Shapkin says should have been given more weight is evidence which was not before the Tribunal at first instance (including extracts from the National Construction Code) and is evidence which was not relevant to the issues before the Tribunal.
5. We are therefore not persuaded that the decision was against the weight of evidence.
6. We are also unable to identify any basis for the assertion that the decision was not fair and equitable, noting that whether a decision is not fair and equitable will involve a consideration of whether there has been an unfairness in the way the proceedings have been conducted or some other denial of procedural fairness. Mr Shapkin has not identified anything about the conduct of the proceedings which would lead us to the conclusion that the decision was not fair or equitable.

Leave to appeal

1. We are therefore not satisfied that Mr Shapkin may have suffered a substantial miscarriage of justice on any of the three grounds specified in cl 12(1) of Schedule 4 to the NCAT Act, and therefore the Appeal Panel's discretion to grant leave to appeal is not enlivened. Accordingly, it is not necessary to consider whether leave to appeal should be granted.

Conclusion and orders

1. For these reasons we make the following orders: 1. Application to refer a question of law to the Supreme Court of NSW refused. 2. Application to issue a summons refused. 3. Leave to appeal refused. 4. Appeal dismissed.

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: 09 January 2023