Shapkin v The University of Sydney

Supreme Court of NSW|2023-12-07|Before: Campbell J

Background facts

The backgrounds facts are well set out in the Appeal Panel's summary of the findings made by Senior Member Titterton at first instance (APJ [9]-[22]): 9 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. 10 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). 11 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. 12 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. 13 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. 14 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. 15 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. 16 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. 17 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). 18 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." 19 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. 20 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. 21 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. 22 Since the locks at the Residence were changed Mr Shapkin has been residing elsewhere although some of his belongings remain at the Residence."

The Residential Agreement

The Appeal Panel summarised the terms of the Residential Agreement as follows (at APJ [60]-[61]): 60 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. … " 61 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: (a) keep the room in a reasonably clean and tidy state at all times: cl 8(a)(i); (b) 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); (c) ensure lights and other electrical equipment are turned off when not in use: cl 8(a)(v); (d) comply with the University's policies, procedures and rules (including, without limitation, any Resident Handbook): cl 8(a)(vi); (e) comply with the reasonable directions and instructions of the University: cl 8(a)(vii); (f) complete any online educational or training module required by the University: cl 8(a)(viii); (g) notify the University of any absence from his room exceeding 48 hours: cl 8(a)(x); (2) 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; (3) 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; (4) 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; (5) requiring the Resident to be fully vaccinated against COVID-19 (unless medically exempted): cl 8(f); (6) permitting the University to install CCTV cameras in the common areas of the Residence: cl 23; and (7) permitting the University, in its absolute discretion, to let rooms within the Residence for casual accommodation over summer: cl 26."

Facts relevant to the Cl 31 question

The Appeal Panel summarised the facts relevant to cl 31 of the Regulation as follows (at APJ [109]-[110]): "[109] 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. 110 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". (Original emphasis)
To these I would add that at first instance Senior Member Titterton found (at J [79] that he was "not entirely persuaded that the residence was located within 'the institution' for the purpose of cl 31 of the Regulation". He reiterated that he was satisfied that the residence was owned by the University.

The Appeal Panel's decision on the construction and application of s 8(1)(c) RTA

The Appeal Panel commenced their essential reasoning with the language of s 13 RTA which is in the following terms: "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. … (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." By s 3 RTA the expression "residential premises means any premises or part of premises … used or intended to be used as a residence".
Section 8(1)(c) RTA provides that the Act does not apply to an "agreement under which a person boards or lodges with another person". In passing, the Appeal Panel observed that "boards" and "lodges" have slightly different meaning (at APJ [71]). By reference to Noblett & Mansfield v Manley [1952] SASR 155 at p158, they said "boarding" is a form of lodging where the lodger, in addition to accommodation, generally receives food or meals as part of the living arrangements.
The Appeal Panel was principally guided by its previous decision in Pupuke v Stretford [2016] NSWCATAP 7 at [20]-[23] (APJ [65]). In that case, Principal Member M Harrowell and Senior Member S Thode said (at [20]): "[20] The expression "a person who boards or lodges with another person" is not defined in the RT Act. However, the expression has been considered in a number of cases in tribunals that were the predecessor to this Tribunal. In Pryor at [32]-[34] the Tribunal, in considering the meaning of this expression under the earlier Residential Tenancies Act, 1987 said: 32.The term lodger is not defined in the 1987 Act and its meaning is to be derived from case law. While many would be sympathetic to the view of Member Hopkins in Johnson v Lismore Woman's & Children's Refuge Inc (RT00/42507 26 February 2001) that the common law concept of lodgers is outmoded being out of place in contemporary society and in need of legislative review, it is necessary to examine the common law definitions to ascertain if in this case the Applicant was a lodger. 33.In Ellis v City Woman's Hostel (RTT 97/022789, 15 June 1998) Member Hopkins brought together the decisions to that time to articulate the fundamental elements of what makes an occupier of premises a lodger by stating: ".. I am of the view that a "lodger" … is a person who has been granted the right, for value, to occupy … premises … for the purpose of their use as a residence, … in circumstances where the owner remains in possession and occupation (either personally or by his servant), and retains the character of master of the house and with the owner exercising control and dominion over the whole." By so viewing a lodger, Member Hopkins was following the previous decision of Chairperson Rustin in Walker v Puvesi (RTT 86/6) who stated, after examining the relevant cases spanning over a century, that in order for an occupier to be seen as a lodger, the distinguishing factor is the nature of the owner's occupation: … 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. 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." "Pryor" is a reference to the former Consumer Trader and Tenancy Tribunal's ("CTTT") decision in Pryor v Costa & Maroulis (Tenancy) [2005] NSWCTT 555. As the expression "lodger" is not otherwise defined in RTA, the Appeal Panel considered Pupuke correctly stated the applicable law (at APJ [75]).
The central question before the Appeal Panel, as it remains before me, was whether the expression "lodges with another person" means that the householder or householder's representative must also reside within the premises during the term of the relevant agreement or whether the principle of remaining in possession and retaining control as master of the house admits of the possibility of an absentee or non-resident "master of the house". In this regard, the Appeal Panel found (at APJ [78]-[82]). [78] While 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). [79] 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). [80] 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). [81] 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]). [82] 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".
The Appeal Panel held that it was the householder's legal right to possession rather than the physical exercise of that right which was required. It was not necessary that the householder, his servant or representative actually resided at the premises with the lodger.
The Appeal Panel summarised the conclusions in the following way (at APJ [90]): [90] 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]. "Personnel" is a reference to Construction Forestry Maritime Mining and Energy Union v Personnel Contracting Pty Ltd (2022) 27 CLR 165; [2022] HCA 1.

The Appeal Panel's decision - the construction of cl 31 of the Regulation

It is convenient to set out the terms of cl 31 of the Regulation now. 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.
Mr Shapkin did not say that the exceptions in cl 31(2) applied. For completeness, the evidence at first instance established that the University is a tertiary institution that provides formal education and is constituted by or under an Act of Parliament. The University was originally "constituted" under "the Act fourteenth Victoria No. 30", which, inter alia, empowered it "to take, purchase and hold all real and personal property whatsoever". The University was continued by the University and University Colleges Act 1900 (NSW). The current governing legislation is the University of Sydney Act 1989 (NSW) which by Sch 3, cl 1 provides: "The University is a continuation of, and the same legal entity as, the University of Sydney referred to in the University and University Colleges Act 1900." Under s 5 of the current legislation, The University is constituted as "a body corporate". By s 7 it is empowered to provide such facilities for its students as it considers desirable "in connection with the exercise of its functions".
The Appeal Panel noted that the expression "hall of residence" was not defined in the RTA (APJ [95]) and referred to definitions in the Macquarie Dictionary and the Merriam-Webster.com dictionary. The latter definition is "a place where students live at a college or university". The Appeal Panel expressed their reasoning as follows (at APJ [97]-[101]): "[97] 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. [98] Our reasons for this include the following. [99] Firstly, the purpose of the provision is to exempt designated student accommodation from the operation of the RT Act. [100] 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. [101] 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."
The Appeal Panel also said (at APJ [104]): "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"."
For clarity, I will repeat the Appeal Panel's conclusion set out above (at [18]) here(at APJ [110]-[111]): "[110] 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". [111] 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."

Consideration - the s 8(1)(c) issue

While Mr Shapkin was apt to dress his submissions in the language of judicial review, understandably perhaps, given his commencement of the concurrent judicial review proceedings, it was clear that the focus of his argument on the s 8(1)(c) RTA grounds was the phrase "lodges with another person" and whether as a matter of law, as the Appeal Panel put it (at APJ [81]) this necessarily connoted "a permanent physical presence [of the University] at the Residence".
Mr Shapkin referred to a great deal of case law in his written submissions. It is not necessary, in my opinion to refer to all of it. He appeared to place particular emphasis upon the decision in Commissioner for Fair Trading (WA) v Voulon [2005] WASC 229 (Hasluck J). Hasluck J reviewed many of the traditional authorities distinguishing tenancies and licence agreements. I will not set them all out. His Honour observed (at [54]) that at common law the right to excusive possession was treated "as the crucial test of a tenancy" as opposed to a licence: Radaich v Smith (1959) 101 CLR 209 at p 222 per Windeyer J. At common law, a lodger, in contradistinction to a tenant, was a mere licencee having a personal right of occupation but no interest in the land. Whether the agreement granted the legal right of exclusive possession was a matter of its construction ascertained according to the normal rules of interpretation of a contract.
The same approach was taken in Street v Mondford [1985] 2 AC 809 pp 816-817 (per Lord Templeman). His Lordship observed that an occupier of residential accommodation at a rent for a term is either or a lodger or a tenant. He is a lodger if the landlord provides attendance or services which require the landlord or his servants to exercise unrestricted access to and use of the premises. "A lodger is entitled to live in the premises but cannot call the place his own" (Voulon at [62]).
Lord Templeman cited Allan v Liverpool Overseers [1874] LR 9 QB 180. Blackburne J (at p 191) explained the nature of the relationship between landlord and lodger. As adapted by Hasluck J (Voulon at [63]): "… a lodger in a house, although he has the exclusive use of rooms in the house, in the sense that nobody else is to be there, and though his goods are stowed there, yet he is not in exclusive occupation in that sense, because the landlord is there for the purpose of being able, as landlords commonly do in the case of lodgings, to have his own servants to look after the house and the furniture, and has retained to himself the occupation, though he has agreed to give the exclusive enjoyment of the occupation to the lodger."
Hasluck J also referred (at [57]) to The Commonwealth v Bogle, Boreham and Clark (1953) CLR 229; [1953] HCA 10 which was concerned with the provision of migrant hostels by the Commonwealth. The accommodation was furnished by the Commonwealth and other services were provided to the residents by employees of the Commonwealth, including meals. By reference to Fullagar J's judgment (p 257), Hasluck J said, "having regard to the purpose of the hostels, to the character of the services and the facilities provided, to the inclusive nature of the charge made, and to the fact that the master keys of all the rooms were retained by officers of the Department, it seems clear that [the migrant families living there] were not tenants but lodgers."
Hasluck J also referred to Noblett & Mansfield v Manley referred to by the Appeal Panel (see [21] above). At common law, the importance of the concept of legal possession is obvious. The right to exclusive possession was a defining characteristic of a lease. In Noblett, Mayo J defined a "lodger" as one who resides as an "inmate" in another person's house paying periodically for the accommodation. His Honour concluded that in ordinary circumstances, "legal possession remains in the person who provides the room or rooms, or meals. He retains possession and control over the rooms and the means of ingress and egress, but grants licence to guests who pay, or give consideration for the privilege". As I have said, legal possession in this context must mean the legal right to exclusive possession, which as Hasluck J emphasised, was the mark of distinction between a lease, on the one hand, and a licence, on the other. In expressing his conclusions, however, Hasluck J said (at [78]): "… proper weight must be given to the statutory definition of "residential tenancy agreement" which means any agreement whether express or implied, under which any person for valuable consideration grants to any other person the right to occupy, whether exclusively or otherwise, any residential premises, or part of residential premises, for the purpose of residence. It is clear from the definition that as a consequence of statutory reform an agreement can be characterised as a residential tenancy agreement, notwithstanding that the rights conferred upon the occupant do not include exclusive possession". (My emphasis.)
His Honour noted at [80] that (like its NSW counterpart) the Residential Tenancies Act 1987 (WA) ("WA RTA") did not apply to any residential agreement where the tenant is a boarder or lodger. His Honour went on to say (at [81]): "The decided cases indicate that an occupier of residential accommodation at a rent for a term is either a lodger or a tenant. The occupier is a lodger if the landlord provides attendance or services which require the landlord or his servants to exercise unrestricted access to and use of the premises. In other words, a lodger is entitled to live in the premises but cannot call the place his own. He resides essentially as an inmate in another person's house."
It is obvious from his Honour's reference to "provides attendance or services" that Hasluck J is not speaking about actual physical residence in the premises. Rather, it is the right of the landlord or his servants to exercise unrestricted access to and use of the premises, I would add even if only for the purpose of cleaning and the provision of other limited regular services. It should, however, be noted that s 5(2)(d) WA RTA, the equivalent of s 8(1)(c) RTA does not include the expression "lodges with another person". The exclusion is simply expressed in these terms: "Where the tenant is a boarder or lodger"; without the concluding qualification.
Mr Shapkin also referred to a number of decisions of the former CTTT and NCAT where emphasis had been laid upon the preposition, "with" in s 8(1)(c). For example, in Muljono v Lang (NCAT, General Member Campbell, 20 April 2016, unrep) the Tribunal observed that the language of s 8(1)(c) was different from the language of s 6(1)(d) Residential Tenancies Act 1987 (NSW) (Repealed) which, I interpolate, was in the same terms as s 5(2)(d) WA RTA. General Member Campbell said at [18]: "The current provision is more specific. The Act does not apply if a person boards or lodgers with another person. I accept that person is a reference to the person granting the right to lodge with him or her. The preposition "with" is itself in context significant. It means that the exception is only engaged if the lodger or boarder resides in premises also occupied by the person granting that right, who might be termed a householder. Manifestly, that is not the situation here. As I have said there are other residents, but neither the householder or proprietor or her agent reside in the premises." To the same effect is the first instance decision of Guider v O'Neil (NCAT, Senior Member Meadows, 15 April 2019, unreported).
I accept that the preposition "with" is a word of connection or relationship, and its meaning must be derived from the actual context in which it is used. I agree with Hasluck J that one has to bear in mind that under the RTA the granting of an exclusive right of possession or occupation is not a defining characteristic of a residential tenancy agreement. This does not of itself mean that the degree of possession and control of the premises conferred by a particular residential tenancy agreement is irrelevant. It remains the case that very many, if not most, residential tenancy agreements confer a right of exclusive occupation, subject to a landlord's limited right to re-enter, for instance on notice for inspection of the condition of the premises or in an emergency.
An agreement under which a person lodges with another person may well, but for its exclusion, have met the definition of residential tenancy agreement in s 13 RTA read as a whole. One has to consider the text, context and purpose of the legislation, including the purpose of the exclusion of certain agreements. It is not correct to focus on the preposition "with". One has to look at the whole construct: "an agreement under which a person … lodges with another person". While the right to exclusive possession is not an essential characteristic of the statutory concept of a residential tenancy agreement, the consideration that the right is wholly retained by the "landlord" is not an irrelevant consideration when deciding whether an agreement is one under which a person lodges with another person. Obviously, whether that is so, depends upon the construction of the agreement.
Moreover, I am not of the view that the expression "lodges with another person", means, and only means, an agreement under which a person resides in the house or other dwelling of another person who also resides there. This would, of course, restrict agreements to which s 8(1)(c) RTA applies to agreements made between natural persons. There is nothing in the context of the RTA which excludes the operation of s 8(d) Interpretation Act 1987 (NSW) that a reference to a person does not exclude a reference to a corporation. That is to say, I would interpret "person" in s 8(1)(c) RTA as extending to a corporation at least so far as that part of the phrase "another person" is concerned; even if a corporation cannot "reside" in a dwelling house for certain statutory purposes: cf Roberts v Waverley Municipal Council (1988) 14 NSWLR 423 at 426B. The migrant families who resided in the migrant hostel in Commonwealth v Bogel were boarders even though the "landlord" was the Commonwealth.
The factors considered by the Appeal Panel referrable to the terms of the residential agreement, amply supported the Appeal Panel's conclusion that the agreement was one under which Mr Shapkin lodged with the University. The Appeal Panel's reasons were comprehensive and carefully crafted in an appropriate way and I am not persuaded that they fell into an error of law in arriving at their conclusion. I am not satisfied their decision is otherwise affected by a question of law. I would dismiss the s 8(1)(c) grounds.

Consideration - cl 31 of the Regulation

I have set cl 31 of the Regulation out at [26] above and I will not repeat it here. Mr Shapkin challenged the conclusion that the premises in which he resided were a "hall of residence" for the purpose of cl 31 on a number of grounds. I should say at the outset that his argument that the Appeal Panel could not be lawfully satisfied to the contrary appears to confuse considerations which may apply to whether jurisdiction to exercise a statutory power has been enlivened with the Appeal Panel's task of determining the meaning (not authoritatively) of cl 31 of the Regulation and whether on the evidence before it, that clause applied to the premises where Mr Shapkin resided under his agreement with the University.
His main legal argument, as I understood it, was that by its references to the University "administrating" the Darlington Terrace residences as halls of residence, it had regard to an irrelevant consideration mandatorily excluded from consideration by RTA. With respect, there is nothing in cl 31 of the Regulation which excludes the relevance of the fact that the University "administered" the Darlington Terrace residences, which it owned, as student accommodation.
Mr Shapkin's complaint about this relates to the operation of cl 31(1)(b), that is to say whether the residential premises allocated to him, which had not been shown to be "located within the institution" were "owned by the institution". In this regard, he referred to the definition of ownership in Black's Law Dictionary being "the bundle of rights allowing one to use, manage and enjoy property, including the right to convey it to another". The entry is annotated with High Court authority. Mr Shapkin, however, accepted that management or administration of property were synonymous.
His point seemed to be that because management or administration "is already a part of ownership element" under cl 31 of the Regulation (Plaintiff's Written Submissions [88]) "one element cannot satisfy the other".
This argument is entirely misconceived. Ownership in cl 31(1)(b) relates to the right, title or interest of the University in the residential premises used or intended for use principally as a hall of residence. The evidence accepted at first instance (including by Mr Shapkin) is much simpler. It was proved that the University acquired the subject residential premises by purchase in 1973. Nothing more complicated was in play and there was no error of law on the part of the Appeal Panel in proceeding on this basis.
The second aspect of Mr Shapkin's argument was that even if the University owned the premises, it was still necessary that those premises be used or intended for use principally as a hall of residence for students of the institution for the purpose of student accommodation. His argument then was that use of land must comply with all the provisions of the Environmental Planning and Assessment Act 1979 (NSW) and all the planning laws made under it including any relevant standards. He made reference to a number of State Environmental Planning Policies dealing with various subject matters. Amongst these was an instrument which Mr Shapkin referred to as "TI SEPP" (the proper citation in this case could not be located in his voluminous list of authorities) which contained a definition of on campus student accommodation in s 3.3. He pointed out that it had elements in common with cl 31 of the Regulation, even if it applied only to premises located within an educational institution. A further element upon which he placed reliance was that the accommodation be "designed primarily for shared living with common spaces with shared common facilities provided for residents". He emphasised that the residential accommodation must be designed for communal use of common spaces and that these concepts can be read into the language of cl 31 of the Regulation in relation to use or intended use. He argued that given the express language of the definition in the TI SEPP did not contain the words "administration" or "designation" as a requirement, those words cannot be read into either TI SEPP or cl 31 of the Regulation.
Mr Shapkin's argument in this regard is clearly and wholly erroneous. There is no connection between the legislative instrument he refers to as TI SEPP and cl 31 of the Regulation which applies to a property located within the University or property owned by the University which is not within its campus, leaving aside cl 31(1)(c) which is not here relevant. There is no legal relationship whatsoever between the instrument he cites and cl 31. Neither one informs the meaning of the other; neither one amends or varies the other. This proposition can be tested very simply: if one assumes that TI SEPP applies to student accommodation on the campus of the University, a hall of residence within the University which fails to comply with whatever its stipulations or requirements might be would yet be a hall of residence for the purpose of cl 31 of the Regulation, assuming that the conditions of cl 31 were themselves engaged. Other consequences might flow from non-compliance with the requirements of planning laws but the essential use of the premises would not change.
One should observe, as the Appeal Panel found, that in any event, the premises the subject of these proceedings did provide for shared accommodation with some common areas, which no doubt would have provided opportunity for communal living had the residents of the particular premises chosen to avail themselves of it.
I am not satisfied that there Mr Shapkin has demonstrated any error of law in the Appeal Panel's construction of cl 31 or in their determination in relation to its application to the facts as found. I would reject his cl 31 grounds of appeal. I am satisfied that the evidence before the Appeal Panel amply justified its conclusions expressed at APJ [108] ff.
In a general way, the Appeal Panel referred to Mr Shapkin's reliance on planning and development law (at APJ [113]). The Appeal Panel concluded that: "… even if such evidence [relevant to that question] 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."
I am satisfied that this conclusion does not involve any error of law on the part of the Appeal Panel.

Other grounds

I accept the argument of the University that given these conclusions, it is futile to consider the other matters relied upon by Mr Shapkin. Either conclusion whether in relation to s 8(1)(c) RTA or cl 31 of the Regulation is sufficient to dispose the whole of the appeal.
I would refuse leave to ventilate any of the other grounds which in any event are somewhat discursive as set out in his summons seeking leave to appeal. I am not satisfied that Mr Shapkin has demonstrated in any way a breach of either limb of the rules of natural justice. There is nothing to suggest any apprehended or actual bias whatsoever on the part of either member of the Appeal Panel. So far as the hearing rule is concerned, the answers to the questions of law I have arrived at engage with the principle I have referred to above from Stead (at [13] above) and were I wrong about the denial of a fair opportunity to be heard, there is no point in the matter being remitted as inevitably the result would be the same.
The reasons of the Appeal Panel by no stretch of the imagination fall short of the legal requirement of adequacy. They are comprehensive and fully explain the pathway by which the Appeal Panel arrived at its decision. The suggestion in Ground 8(b) that the reasons expressed are not the true reasons is entirely baseless and cannot be sustained.
The decision arrived at is not only free of legal unreasonableness, in my judgment, the decision was legally correct and so far as it depends upon the application of the correctly stated law to the facts established by the evidence, the decision was reasonable and open to the Appeal Panel.
There was no constructive failure to exercise jurisdiction, the substance of Mr Shapkin's case was fully addressed in an appropriate manner in the reasons for judgment.
To the extent to which Mr Shapkin raises as a ground of appeal the denial of the opportunity to issue a summons to obtain documents to advance his case based upon his understanding of planning law, I am not satisfied that it raises only questions of law. For the reasons I have rehearsed in any event, those matters were not relevant and the proposed summons had no legitimate forensic purpose as the Appeal Panel held.

Orders

For these reasons I make the following orders: 1. Under s 83 Civil and Administrative Tribunal Act 2013 (NSW), grant leave to appeal on the s 8(1)(c) Residential Tenancies Act 2010 (NSW) and cl 31 Residential Tenancies Regulation 2019 (NSW) grounds, otherwise leave to appeal is refused. 2. Appeal dismissed. 3. Plaintiff is to pay the defendant's costs of the Appeal.

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: 27 August 2024

Civil Administrative and Tribunal Act 2013(NSW)

Residential Tenancies Act 1987(NSW)

University and University Colleges Act 1900(NSW)

Solicitors: Bartier Perry (Defendant) File Number(s): 2023/45445 Decision under review Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Appeal Panel Citation: [2023] NSWCATAP 2 Date of Decision: 09 January 2023 Before: D Charles, Senior Member D Ziegler, Senior Member File Number(s): RT 22/41926

The nature of the appeal and the question of leave

By s 83(1) NCAT Act, an appeal from the Appeal Panel disposing of an internal appeal lies to this Court, only with leave, and limited to a question of law.
The substantive dispute between Mr Shapkin and the University adjudicated in NCAT was whether the RTA applied to both the residential agreement and the premises in which he resided situate in Darlington Terrace, Darlington. The factual matrix of the dispute was Mr Shapkin's eviction by the University on 27 September 2022. As Mr Shapkin put it, in the circumstances of this case, this involved two questions. The first was whether his agreement with the University was a residential tenancy agreement under s 13 RTA. The second was whether the premises had been exempted from the operation of the RTA by force of cl 31 Residential Tenancies Regulation 2019 (NSW) ("the Regulation") made under s 12 RTA.
The proceedings came before the Tribunal on Mr Shapkin's urgent application for a declaratory order under s 11 RTA as to whether his residential agreement with the University is or is not a residential tenancy agreement to which RTA applies; and, whether the premises he occupied are or are not premises to which RTA applies.
The question of whether Mr Shapkin's residential agreement with the University was one to which RTA applied, turned upon the terms of s 8(1)(c) excluding "an agreement under which a person boards or lodges with another person". Adapted for the facts, the issue was whether Mr Shapkin's agreement was one under which he lodged with the University.
The issue about whether the premises were exempt from the Act turned on the terms of cl 31 of the Regulation, as I have said. The particular question was whether the premises in which he resided under the agreement were a "hall of residence for students of an educational institution". As issue was joined between Mr Shapkin and the University, this turned on whether the premises he shared with two other students came within the meaning of a hall of residence and if so, whether one or other of the conditions specified in sub-cl 31(1) of the Regulation applied.

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