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[2025] NSWCA 100
respondent. Leave to appeal refused; the applicant is to pay the respondent’s costs of the application for leave to appeal.
The Court of Appeal did not decide afresh whether Mr Shapkin was a lodger. It refused permission for a further appeal because the University-owned student accommodation was, on the Court’s reading, covered by the student-residence exemption in cl 31 of the Regulation. That exemption independently meant the Residential Tenancies Act did not apply. Since the s 8(1)(c) lodger question could not change the result, it was not a suitable issue to appeal in this case. The Court also rejected the proposed argument about the agreement’s expiry and ordered Mr Shapkin to pay the University’s costs.
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6 cited instruments linked from this judgment.
2,343 words · generated 06/10/2026
This was an application for leave to appeal, not a full appeal deciding the underlying dispute again. The dispute concerned whether the Residential Tenancies Act 2010 (NSW) applied to student accommodation provided by the University of Sydney to Mr Shapkin. The Court of Appeal, constituted by Mitchelmore JA and Ball JA, refused leave on 16 May 2025 and ordered Mr Shapkin to pay the University’s costs ([43]-[44]).
Mr Shapkin was undertaking a Master of Laws degree at the University. He occupied a room in a terrace house in Darlington Road, near the University’s main campus. He shared the house with two undergraduate students. The University owned 39 properties in Darlington Road, most used for student accommodation, and provided accommodation for about 1,900 students across different facilities ([2]).
The written agreement described Mr Shapkin as becoming a “lodger” and granted a “licence to reside” in a room. It also reserved substantial controls to the University: it could decide which room to allocate, move him to another room or residence, access the room for specified purposes without being obliged to give notice, and control the addition of furnishings ([4]-[5]). Those terms had been relevant to the earlier Tribunal and Appeal Panel decisions about the lodger exclusion.
After complaints about Mr Shapkin’s conduct, the University sent a termination notice on 23 September 2022. Four days later, it advised him he could no longer enter the house and that the locks had been changed ([6]). He applied to the NSW Civil and Administrative Tribunal for relief under the Residential Tenancies Act. The Tribunal concluded the Act did not apply for two separate reasons: the agreement was one under which a person “lodges with another person”, within s 8(1)(c), and the residence fell within cl 31 of the Residential Tenancies Regulation 2019 (NSW) ([13]-[16]).
The Appeal Panel rejected his internal appeal ([19]-[25]). In the Supreme Court, Campbell J granted leave to appeal on the two central statutory questions, concerning the meaning of “lodges with another person” and the application of cl 31. The present application sought leave for a further appeal from that decision ([27]-[30]).
The Court of Appeal considered three broad proposed grounds. The first challenged the s 8(1)(c) conclusion. The second challenged the construction and application of cl 31. The third concerned the usefulness of further proceedings after the agreement’s stated end date of 5 December 2022, with Mr Shapkin apparently arguing that the arrangement would become periodic after expiry ([33]).
The Court began with the threshold for leave. It said that leave generally requires an issue of principle, a question of public importance or a reasonably clear injustice going beyond something “merely arguable” ([31]). It added that showing only that the primary judge was arguably wrong is not enough ([32]). This is important to understanding the result: the Court was not conducting an unrestricted review of every alleged error.
The proposed cl 31 ground failed that threshold. Clause 31(1) exempts certain residential premises used, or intended for use, principally as a residential college or hall of residence for students of an educational institution, if the premises are within the institution, owned by it, or provided for student accommodation under a written agreement with it. The Court focused on the wording and structure of the clause ([37]-[40]).
First, the Court rejected the argument that a three-bedroom terrace house could not be a “hall of residence”. It treated the relevant premises as the residential accommodation, not necessarily a large, purpose-built hall. The house was being used to accommodate students while they studied at the University, so it fell within the description in the Court’s view ([37]). The Court added that even if “hall of residence” implied a communal element, that feature was present because the residents shared the common areas ([37]).
Second, the Court rejected the argument that University-owned premises had to be inside the University’s geographic boundaries. Clause 31(1)(a) separately covers premises “located within the institution”, while para (b) covers premises “owned by the institution”. If ownership also required location within the institution, the Court reasoned, para (b) would add nothing. It therefore gave “owned” its ordinary meaning, without implying a campus-boundary condition ([39]).
The Court also rejected reliance on the State Environmental Planning Policy (Transport and Infrastructure) 2021 (NSW). It explained that the cited planning provisions dealt with development controls for university land and did not assist in construing “owned” in the Regulation ([40]). The third argument, that the University was not an educational institution constituted by or under an Act, was answered by the University of Sydney Act 1989 (NSW) ([41]).
Because the cl 31 ground was not reasonably arguable, the Court did not need to resolve the s 8(1)(c) issue to determine the application. The two statutory bases were independent: even if the lodger argument succeeded, cl 31 would still mean the Act did not apply. The Court said the s 8(1)(c) question would therefore not affect the outcome and made the case an unsuitable vehicle for that proposed ground ([35], [42]). The Court did not itself decide the ultimate meaning or application of “lodges with another person”.
The third proposed ground also failed. The Court reasoned that even if the primary judge had been wrong about the significance of the agreement’s expiry, a rehearing would still be futile if the Act did not apply. The alleged possibility of a periodic agreement could not overcome the independent cl 31 conclusion ([34]).
The judgment describes the statutory setting as it stood for this dispute. Section 6 of the Residential Tenancies Act says the Act applies to residential tenancy agreements in respect of residential premises. Section 13 defines a residential tenancy agreement broadly, including agreements granting a right of occupation for value, even where occupation is not exclusive. But the Act also contains exclusions, including s 8(1)(c) for an agreement under which a person boards or lodges with another person, and s 12 authorises regulatory exemptions ([8]-[12]).
Clause 31 of the 2019 Regulation was the central provision for the Court of Appeal’s reasoning. Its relevant formulation connects the exemption to the use of premises principally as a residential college or hall of residence for students, and to the premises being located within, owned by, or provided under agreement with the educational institution. The Court’s construction establishes, for this case, that “owned by the institution” is not limited to land inside the institution’s boundaries ([39]).
The decision did not change the text of the Act or Regulation. Nor did it decide that every property occupied by students is exempt. The wording still requires the specified use and one of the stated connections with the educational institution. The Court’s application was to a University-owned terrace house used to accommodate University students while studying ([37]-[41]).
As to s 8(1)(c), the history in the judgment records that the Tribunal and Appeal Panel treated the agreement as a lodger arrangement, and that the primary judge considered whether legal control, rather than physical presence, was central to that question ([14], [21]-[24], [28]-[30]). But the Court of Appeal refused leave on the ground because it could not affect the result. Its decision should not be presented as a Court of Appeal holding that the University was or was not a “person” with whom Mr Shapkin lodged.
The judgment provides no account of later court treatment after 16 May 2025. It therefore supports no conclusion here about whether later courts have followed, distinguished or otherwise treated this decision.
At [31], the Court said leave generally requires “an issue of principle, a question of public importance or a reasonably clear injustice going beyond something that is merely arguable”. In plain English, a proposed appeal needs to meet a meaningful threshold; it is not enough simply to identify a point that could be argued.
At [32], the Court added that “it is not sufficient merely to show that the primary judge was arguably wrong”. This explains why the application was not an opportunity for another general review of all disputed issues. The Court required the proposed grounds to meet the additional leave threshold.
At [37], the Court said the terrace house was plainly residential premises being used as a hall of residence because it was being used to accommodate students while they studied at the University. This is the central application of cl 31 to the facts. The Court also noted that shared common areas met any possible communal aspect of the term.
At [39], the Court explained that the ownership limb covers premises outside an institution’s geographic boundaries, because otherwise it would be superfluous beside the separate “located within the institution” limb. The practical interpretive point is that the clause’s separate alternatives were given distinct work to do.
At [42], the Court stated that deciding the proposed s 8(1)(c) issue could not affect the outcome after the cl 31 ground failed to show an arguable error. In plain English, an appellate court may refuse to decide a legal question that cannot change the result in the particular case.
Finally, at [43]-[44], the Court concluded that Mr Shapkin had no reasonable prospects of succeeding in the proposed appeal, refused leave, and ordered him to pay the University’s costs of the leave application.
The reasoning is most directly relevant where residential premises are used principally to accommodate students of a qualifying educational institution, and the premises have one of the connections listed in cl 31(1): they are located within the institution, owned by it, or provided for the stated use under a written agreement. The case is particularly relevant to institution-owned accommodation located outside the institution’s geographic boundaries. The Court expressly rejected a campus-boundary limitation on the ownership limb ([39]).
The judgment also indicates that a modest-scale property is not automatically outside the concept of a hall of residence. The premises here were a terrace house shared by three students, and the Court treated the house’s use for student accommodation as sufficient for the relevant description ([2], [37]). The Court’s alternative observation about shared common areas may matter where the meaning of “hall” is argued to imply communal living ([37]).
The decision does not establish that student status by itself is sufficient. A property’s use, the “principally” requirement and its connection to an educational institution remain part of the clause’s language. Nor does it decide how cl 31 applies to accommodation used principally for non-students, accommodation not connected to an educational institution in one of the specified ways, or arrangements falling within the stated exceptions in cl 31(2). Those circumstances were not resolved in the reasons provided.
The judgment may also be relevant to leave applications where one statutory ground independently sustains the result. Here, the cl 31 exemption meant that deciding the separate lodger question would not alter the outcome, so that question was unsuitable for determination on the proposed appeal ([35], [42]).
The judgment supplied for analysis contains no decisions issued after Shapkin v The University of Sydney [2025] NSWCA 100. It therefore does not establish how later courts have treated this decision.
The Court itself referred to earlier authorities for the leave-to-appeal threshold, including McEvoy v Wagglens Pty Ltd, Jaycar Pty Limited v Lombardo, Secretary, Department of Family and Community Services v Smith, Gibson v Drumm, Carolan v AMF Bowling Pty Ltd and Be Financial Pty Ltd v Das ([31]-[32]). It applied those authorities to the question whether the proposed grounds justified leave; the judgment does not set out a new general test replacing them.
The reasons also recount earlier decisions in Mr Shapkin’s own proceedings: the Tribunal decision, the Appeal Panel decision, and Campbell J’s Supreme Court decision ([7], [19], [27]). The Court of Appeal describes the earlier consideration of the lodger issue but does not adopt that reasoning as a substantive appellate determination. Rather, it declined leave on that issue because the cl 31 ground independently disposed of the matter ([42]).
Accordingly, the clearest precedential point in this judgment is its construction of cl 31’s distinct location and ownership limbs, together with its application of the leave threshold to grounds rendered immaterial by an independent basis for the result. Any account of subsequent treatment would require sources beyond this judgment.
The Court did not decide the substantive scope of “lodges with another person” in s 8(1)(c). Its reasons recount the prior proceedings and identify the proposed issue, but the Court refused leave because cl 31 independently excluded the premises from the Act ([35], [42]). Questions about whether physical presence by a householder is required, and how contractual rights and control bear on the statutory description, were therefore not finally resolved by this Court of Appeal judgment.
The decision also leaves open how the cl 31 exemption applies outside the facts before it. The Court considered University-owned accommodation occupied by students, with shared common areas. It did not decide every boundary of “used principally”, “hall of residence” or the alternative route for premises provided under a written agreement with an institution ([37]-[40]).
The judgment states the exceptions in cl 31(2), including a written agreement that the premises are subject to the Act and certain National Rental Affordability Scheme circumstances ([12]). The appeal did not require the Court to analyse those exceptions. Their application in a different case would depend on the relevant evidence and the text of the provision.
Finally, the Court rejected the proposed ground concerning expiry because the Act’s non-application made a rehearing futile on the reasoning adopted ([34]). It did not decide the general legal consequences of expiry of a student accommodation agreement or determine whether such an agreement becomes periodic in other circumstances. That proposition was raised by Mr Shapkin, but the Court’s reasoning made it unnecessary to resolve it.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Shapkin v The University of Sydney [2025] NSWCA 100
Hearing dates: 5 May 2025
Date of orders: 16 May 2025
Decision date: 16 May 2025
Before: Mitchelmore JA; Ball JA
Decision: (1) Leave to appeal refused;
(2) The applicant to pay the respondent’s costs of the application for leave to appeal.
Catchwords: LEASES AND TENANCIES – where Applicant was evicted from student accommodation – whether residence under residential agreement between Applicant and University exempt from Residential Tenancies Act 2010 (NSW) – meaning of “hall of residence” – residential agreement and residential premises excluded from operation of Residential Tenancies Act 2010 (NSW)
APPEALS – application for leave to appeal – no issue of principle, question of public importance or reasonably clear injustice identified – leave refused
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 80, 83
Interpretation Act 1987 (NSW), s 8
Residential Tenancies Act 2010 (NSW), ss 6, 8, 11-13
Residential Tenancies Regulation 2019 (NSW), cl 31
State Environment Planning Policy (Transport and Infrastructure) 2021 (NSW), ss 3.44, 3.45
University of Sydney Act 1989 (NSW)
Cases Cited: Be Financial Pty Ltd v Das [2012] NSWCA 164
Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69
Commissioner for Fair Trading (WA) v Voulon [2005] WASC 229
Gibson v Drumm [2016] NSWCA 206
Jaycar Pty Limited v Lombardo [2011] NSWCA 284
McEvoy v Wagglens Pty Ltd [2021] NSWCA 104
Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206
Shapkin v The University of Sydney [2022] NSWCATCD
Shapkin v The University of Sydney [2023] NSWCATAP 2
Shapkin v The University of Sydney [2024] NSWSC 1091
The Commonwealth v Bogle, Boreham and Clark (1953) 89 CLR 229; [1953] HCA 10
Category: Principal judgment
Parties: Mr Vasiliy Shapkin (Applicant)
The University of Sydney (Respondent)
Representation: Counsel:
V Shapkin (Litigant in Person)
A Rao with J Pen (Respondent)
Solicitors:
Bartier Perry (Respondent)
File Number(s): 2024/353677
Publication restriction: Nil
Mr Shapkin was at the time of his eviction undertaking a Master of Laws degree at the University. The accommodation in question consisted of a room in a terrace house located in Darlington Road, Darlington, adjacent to the Economics and Business building at the University’s main campus in Camperdown and Darlington. Mr Shapkin shared the house with two other undergraduate students. It appears the terrace house comprised half of a single building. The other half was owned privately by Mr Terence Lord. The terrace house was one of 39 properties in Darlington Road that were owned by the University, most of which are used for student accommodation. In all, the University provides accommodation for approximately 1900 students in various types of facilities and residences that are managed by a department of the University known as Student Accommodation Services.
The terms on which Mr Shapkin occupied the room were governed by a document titled “Residential Agreement Acknowledgement” (the RAA) dated 19 April 2022 that had been signed by Mr Shapkin.
The RAA relevantly provided:
You are entering into a legal agreement with the [University] to become a lodger in the Facility as follows:
Term: For the period from 2.00pm on 20/04/2022 ("Commencement 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.
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 furnished] 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…
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 …
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. …
13. Security, locks and keys
(a) The Resident is not permitted to change any of the locks in the Room.
(b) Key cards and keys must not be duplicated or left in the card reader and/or door.
(c) The Resident must immediately report the loss or damage of any door locks, keys and/or security access cards to the University. …
26. Summer Letting
(a) The University may, in its absolute discretion, let rooms within the residence for casual accommodation over the Summer Period.
Following complaints made on 25 and 28 August 2022 by two other undergraduate students about Mr Shapkin’s conduct, on 23 September 2022 the University’s Office of Student Life sent Mr Shapkin a notice of termination terminating the RAA in accordance with cll 8(c) and 16(c) of the Terms and Conditions (which are not in evidence). Following an offer of alternative temporary accommodation, which Mr Shapkin declined, on 27 September 2022 Student Accommodation Services sent Mr Shapkin an email advising him that he was no longer permitted to enter the terrace house and that the locks had been changed.
Following his eviction, Mr Shapkin commenced proceedings in the NSW Civil and Administrative Tribunal (Tribunal) seeking relief under the RT Act. That application was heard urgently by RC Titterton OAM, a Senior Member on 29 September 2022, who delivered a decision on 4 October 2022.
The principal issue before the Tribunal was whether the RT Act applied to Mr Shapkin’s residence at the terrace house under the RAA. Section 6 of the RT Act provides:
Act applies to existing and future residential tenancy agreements
This Act applies to residential tenancy agreements in respect of residential premises whether made before or after the commencement of this section.
(1) A residential tenancy agreement is an agreement under which a person grants to another person for value a right of occupation of residential premises for the purpose of use as a residence.
(2) A residential tenancy agreement may be express or implied and may be oral or in writing, or partly oral and partly in writing.
(3) An agreement may be a residential tenancy agreement for the purposes of this Act even though—
(a) it does not grant a right of exclusive occupation, or
(b) it grants the right to occupy residential premises together with the letting of goods or the provision of services or facilities.
Note—
See section 8 for agreements that are not covered by this Act. Section 7 sets out premises not covered by this Act.
(4) For the purpose of determining whether an agreement is a residential tenancy agreement, it does not matter that the person granted the right of occupation is a corporation if the premises are used (or intended for use) as a residence by a natural person.
Agreements to which Act does not apply
(1) This Act does not apply to the following agreements—
(a) …
…
(c) an agreement under which a person boards or lodges with another person,
…
11 Declaration by Tribunal
The Tribunal may, on application by the Secretary or another person, make an order declaring that a specified agreement is, or is not, a residential tenancy agreement to which this Act applies or that specified premises are, or are not, premises to which this Act applies.
Note—
Under section 195, the Secretary may intervene in proceedings before the Tribunal that are brought by another person.
12 Exemptions from operation of Act
(1) The regulations may exempt from the operation of this Act or the regulations or any specified provision of this Act or the regulations any specified person, agreement or premises or any specified class of persons, agreements or premises.
(2) An exemption may be unconditional or subject to conditions.
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.
The Tribunal concluded that the RT Act did not apply for two reasons.
First, the RAA was an agreement under which a person “lodges with another person” and therefore fell within the exclusion contained in s 8(1)(c) of the RT Act. In reaching that conclusion, the Tribunal accepted that the fact that the RAA described Mr Shapkin as a “lodger” was not determinative. However, it found that Mr Shapkin was a lodger because he did not have exclusive use and control of the terrace house and because of the other facilities and services provided by the University under the RAA.
Second, the Tribunal concluded that the premises in which Mr Shapkin resided fell within the terms of cl 31 of the Regulation. It accepted evidence led by the University that it owned the terrace house. What was critical for the Tribunal was the fact the house was used principally to accommodate students of the University. The fact that it was a house that only accommodated three people did not prevent it from being a “hall of residence”.
Accordingly, the Tribunal relevantly made the following orders:
1. Orders that the application is dismissed.
2. Declares that 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 Residential Tenancies Act 2010 (NSW).
- Declares that the Residence is exempt from the Residential Tenancies Act 2010 (NSW).
(a) the decision of the Tribunal under appeal was not fair and equitable; or
(b) the decision of the Tribunal under appeal was against the weight of evidence; or
(c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
(3) The Appeal Panel may—
(a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and
(b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances.
The appeal was heard on 14 December 2022. The Appeal Panel delivered its decision on 9 January 2023: Shapkin v The University of Sydney [2023] NSWCATAP 2.
Mr Shapkin raised a large number of grounds of appeal before the Appeal Panel. They included the following (as set out in the Appeal Panel’s reasons at D[46]):
(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.
The Appeal Panel accepted that each of those grounds raised a question of law so that leave to appeal in respect of those grounds was not required. Mr Shapkin also sought 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 …”: at D[48].
(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 [Pupuke v Stratford [2016] NSWCATAP 7] 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 [a reference to Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2022) 275 CLR 165; [2022] HCA 1] 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].
(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).
The Appeal Panel considered that those facts were sufficient to establish that the arrangement was one by which Mr Shapkin “lodges with another person”. In reaching that conclusion, the Appeal Panel rejected Mr Shapkin’s submission that the arrangement was not one in which he “lodges with another person” because the University did not maintain a permanent physical presence at the house (at D[82]) and his submission that he was not a lodger because the University did not always enforce the terms of the agreement (at D[83]-[85]).
In relation to the question whether cl 31 of the Regulation applied, the Appeal Panel accepted that the house was a “hall of residence for students” for the purposes of cl 31. In its view, what was critical was the way in which the house was managed, which in this case was clearly to accommodate students attending the University. The Appeal Panel accepted that the proper construction of cl 31 did not require there to be a minimum number of students or for there to be characteristics of communal living: at D[105]. Nor did it consider it relevant that half the actual building was owned privately by Mr Lord. As is apparent from the wording of cl 31, the clause is concerned with “residential premises”, not buildings.
The Appeal Panel also considered the other grounds of appeal raised by Mr Shapkin. They are not relevant to the current application.
Mr Shapkin sought leave to appeal from the Appeal Panel’s decision. Under s 83(1) of the NCAT Act “[a] party to an external or internal appeal may, with leave of the Supreme Court, appeal on a question of law to the Court against any decision made by the Tribunal in the proceedings”.
The application for leave to appeal was heard by Campbell J on 7 December 2023. His Honour delivered judgment on 27 August 2024: Shapkin v The University of Sydney [2024] NSWSC 1091. The material before his Honour (including the grounds of appeal) was not before this Court. However, it is apparent that Mr Shapkin sought to raise again many of the grounds of appeal that he had raised before the Appeal Panel, including the grounds that sought to raise “jurisdictional error of one kind or another or impugn the process of fact finding in some way” (J[9]). As his Honour pointed out, those grounds may themselves raise questions of law for the purposes of s 83 of the NCAT Act. However, his Honour thought that leave to argue those grounds should not be given until he determined the central questions of law sought to be agitated by Mr Shapkin — namely, the meaning of the expression “lodges with another person” in s 8(1)(c) of the RT Act and the question whether cl 31 of the Regulation applied.
In relation to the first of those questions, his Honour observed that 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’”: J[23].
A grant of leave to appeal generally requires there to be identified an issue of principle, a question of public importance or a reasonably clear injustice going beyond something that is merely arguable: McEvoy v Wagglens Pty Ltd [2021] NSWCA 104 at [35] per Bell P and Payne JA; Jaycar Pty Limited v Lombardo [2011] NSWCA 284 per Campbell JA (Young and Meagher JJA agreeing); Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 (Smith) at [28] per Gleeson JA (Macfarlan and Payne JJA agreeing); Gibson v Drumm [2016] NSWCA 206 at [19] per Beazley P and Simpson JA; Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69 per Kirby P at 3.
It is well established that it is not sufficient merely to show that the primary judge was arguably wrong: Smith at [28]; Be Financial Pty Ltd v Das [2012] NSWCA 164 at [32]. Moreover, leave to appeal should not be granted where it cannot be said that the primary judge was arguably wrong, since in that case, it cannot be said that the appeal raises an issue of principle or a question of public importance or that a reasonably clear injustice has resulted from the decision.
There is no merit in the proposed third ground of appeal. The primary judge granted Mr Shapkin leave to appeal on the two principal issues raised by his claim. In refusing leave to appeal on the other grounds raised by Mr Shapkin, one reason his Honour gave was that there was no utility in determining those grounds if the true position was that the RT Act did not apply. That was because, even if Mr Shapkin could establish that in some way or another he had not received a fair hearing in the Tribunal, a new, properly conducted hearing could not possibly lead to a different result: J[13]. The expiry of the RAA was a further factor supporting the futility of a further hearing: J[15]. Even if his Honour was wrong about the expiry of the RAA (which is not for us to decide on this application), it remained the case that a rehearing in the Tribunal would be futile if Mr Shapkin failed on either of his two principal grounds of appeal, and the RT Act did not apply. Accordingly, leave to appeal should not be given in relation to Mr Shapkin’s proposed third ground of appeal.
In relation to the remaining two proposed grounds, Mr Shapkin needs to demonstrate a reasonably arguable case that the primary judge erred in his approach to both s 8(1)(c) of the RT Act and cl 31 of the Regulation, as they constitute independent bases on which his Honour concluded that the RT Act did not apply. For the reasons set out below, the proposed second ground of appeal, which involved cl 31 of the Regulation, is not reasonably arguable. In those circumstances, the determination of the issues raised in the proposed first ground of appeal would not affect the outcome of the appeal, rendering the present case an unsuitable vehicle for consideration of those issues.
The second proposed ground of appeal contains twelve sub-grounds, a number of which are expressed in obscure language and have little to do with the actual language of cl 31. In essence, it appears that Mr Shapkin seeks to advance three arguments for why cl 31 does not apply. The first is that a three-bedroom terrace cannot properly be described as a “hall of residence”. The second is that “owned” as used in cl 31(1)(b) carries with it a requirement that the hall of residence be within the boundaries of the University. That conclusion is said to be supported by s 3.45 of the State Environment Planning Policy (Transport and Infrastructure) 2021 (NSW) (the TI SEPP), which provides that “Despite section 3.44(2), development for the purposes of campus student accommodation may be carried out by a person with development consent on land within the boundaries of the university”. Third, it appears to be suggested that the primary judge could not be satisfied that the University was “registered”.
None of these arguments has any merit. The expression in cl 31(1) of the Regulation is “Residential premises used … principally as a … hall of residence for students of an educational institution”. The terrace house plainly falls within the description “residential premises”. It is plainly being as a “hall of residence for students”, since it is being used to accommodate students while they are studying at the University. Even if, contrary to the conclusions of the Appeal Panel, the concept of a “hall of residence” carries with it a communal aspect to the conditions under which the students live, that requirement is satisfied in this case, since the common areas of the house are shared by the students who reside in it.
For the reasons given, Mr Shapkin has no reasonable prospects of succeeding in his appeal. Accordingly, leave to appeal should be refused. There is no reason why Mr Shapkin should not pay the University’s costs of the application for leave to appeal.
The orders of the Court, therefore, are:
Leave to appeal refused;
The applicant to pay the respondent’s costs of the application for leave to appeal.
**********
Shapkin
The University of Sydney [2025] NSWCA 100
(2017) 95 NSWLR 597
(1953) 89 CLR 229
(2022) 275 CLR 165
(2016) 50 VR 74
(2002) 213 CLR 1
Leave to appeal refused; the applicant is to pay the respondent’s costs of the application for leave to appeal.
In relation to that question, after discussing the decision of Hasluck J in Commissioner for Fair Trading (WA) v Voulon [2005] WASC 229 (a case on which Mr Shapkin placed emphasis both before the primary judge and before us) and the cases discussed by Hasluck J in that case, including The Commonwealth v Bogle, Boreham and Clark (1953) 89 CLR 229; [1953] HCA 10, the primary judge concluded that what was important was whether the landlord exercised legal possession, not physical possession over the premises. The primary judge considered that that conclusion was supported by the fact that if the expression “lodges with another person” required the landlord to be in physical possession, the consequence would be that the exclusion would only operate where the landlord was a natural person. There was nothing in the context of the RT Act to support the exclusion of s 8(d) of the Interpretation Act 1987 (NSW), which states that a reference in an Act to a person “does not exclude a reference to a corporation merely because elsewhere in the Act or instrument there is particular reference to a corporation …”: J[42].
In relation to cl 31 of the Regulation, the primary judge, after considering several arguments raised by Mr Shapkin that were repeated before us and are dealt with below, concluded that that clause did apply to exclude the application of the RT Act to the terrace house where Mr Shapkin was accommodated.
It is equally plain that premises that are used as halls of residence are excluded from the operation of the Act because of the particular function that they perform — that is, providing accommodation to students while they are studying at an educational institution. Whatever reasons make it appropriate to exclude accommodation of that type from the operation of the Act apply equally to the accommodation provided by the University at the house in question. Consequently, an interpretation of the clause that had the effect of excluding the house would be inconsistent with the purpose of the exclusion.
As to Mr Shapkin’s second argument, cl 31 relevantly applies to premises “located within the institution” (para (a)) “or” premises “owned by the institution” (para (b)). Plainly, the clause is intended to cover premises that are owned by the institution outside the institution’s geographic boundaries, since otherwise para (b) would be superfluous. Moreover, there is no reason not to give the word “owned” its ordinary meaning in para (b). As ordinarily understood, that meaning does not carry with it the notion that the premises be located within the principal geographic boundaries of the relevant institution.
Mr Shapkin’s reliance on provisions of the TI SEPP in this context, which entered into force after the Regulation, was misplaced. Section 3.44 of the TI SEPP provides that in Part 3.5, titled “Universities – specific development controls”, “development for the purposes of a university does not include development for the purposes of campus student accommodation”. Section 3.45 of the TI SEPP is an exception to that exclusion where development for the identified purpose is carried out with development consent “on land within the boundaries of the university”. That exception, in a planning instrument, which applies in its terms to land within the boundaries of a university, provides no assistance on the question of what is meant by “owned” in cl 31 of the Regulation.
As to Mr Shapkin’s third argument, the question is whether the University is constituted “by or under an Act”. It plainly is: the University of Sydney Act 1989 (NSW).
The proposed second ground of appeal should be dismissed. It follows that leave to appeal should also be refused in relation to the proposed first ground of appeal, which concerned s 8(1)(c) of the RT Act, as determination of the issues raised by that ground would not affect the outcome of the appeal in the present case. The conclusion that leave to appeal in relation to the proposed first ground should be refused in those circumstances is reinforced when it is borne in mind that the issues have already been considered in detail by the Tribunal, both at first instance and on appeal, and by the primary judge, and in each case has been resolved by reference to well-established principles.