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BETWEEN: NICHOLAS WILLIAMS Appellant AND: LIVECOMFY REAL ESTATE PTY LTD ACN 656 799 012 Respondent

APPEAL TRIBUNAL: Presidential Member M Hassall

DATE: 15 June 2026

ORDER The Tribunal orders that: AA 108 of 2025

1. The proceedings are to be listed for further hearing before the Appeal Tribunal as to appropriate consequential orders made in light of the findings to date of the Appeal Tribunal. AA 5 of 2026

2. Paragraph 1 of the orders of the Original Tribunal made on 9 January 2026 in RT 689/2025 is set aside.

……………………………….. Presidential Member M Hassall REASONS FOR DECISION Introduction

1. The present matter concerns two internal ACAT appeals from decisions of the 1 Original Tribunal delivered on 12 December 2025 (AA 108 of 2025) (First Decision) and 9 January 2026 (AA 5 of 2026) (Second Decision) respectively. On 28 January 2026, the Tribunal directed, for the purposes of subsection 82(1) of the ACT Civil and Administrative Tribunal Act 2008, that the appeals were to proceed by way of review of the original decisions unless the Tribunal otherwise ordered. On 21 April 2026, I was satisfied that it was appropriate to maintain that approach and proceeded to hear the two appeals before me, concurrently.

2. The appellant in each appeal is Mr Nicholas Williams (Mr Williams), a person who previously occupied the “Third Room” at Unit 64, 77 Northbourne Avenue, Turner, in the Australian Capital Territory (the Premises). The respondent in each appeal is LiveComfy Real Estate Pty Ltd (ACN 656 799 012) (LiveComfy), an entity with which, between May 2023 and February 2025, Mr Williams ostensibly entered into written “Occupancy Agreements” relating to his occupation of the Third Room at the Premises. The sole director of LiveComfy is Mr Jun (aka Kevin) Jin (Mr Jin), who was authorised to, and in fact, represented LiveComfy both before the Original Tribunal and before the Appeal Tribunal.

The parties’ claims before the Original Tribunal

3. In the proceedings before the Original Tribunal, Mr Williams applied, among other things, for declarations that LiveComfy had breached the Residential Tenancies Act 1997 (RT Act) and the Privacy Act 1988 (Cth) (Privacy Act), and an order for compensation in his favour in the sum of $25,000. By the time of the hearing before the Original Tribunal, Mr Williams had settled upon a submission that the purported “Occupancy Agreements” between himself and LiveComfy contravened the provisions of Part 5A of the RT Act and therefore were invalid

1 In these reasons, a reference to ‘ACAT’ or the ‘tribunal’ refers to the ACT Civil and Administrative Tribunal generally, whereas ‘Appeal Tribunal’ or ‘Tribunal’ refers to the presently constituted tribunal. When discussing the first instance decision, the Tribunal uses the expressions “Original Decision(s)” and “Original Tribunal”. or “illegal”. Mr Williams itemised the components of his compensation claim as follows: (a) failure to lodge bond within 14 days: $2,000; (b) failure to remedy unsafe conditions: $4,500; (c) breach of ACAT orders: $3,000; (d) negligent operation of unregulated lodging: $3,500; (e) false statements about legal rights (re ACAT) $2,000; (f) privacy violations: $5,000; (g) mishandling of private communications: $2,000; (h) unauthorised access and safety breaches: $1,000; (i) legal costs and administrative burden: $1,000; and (j) harassment and intimidation: $1,000.

4. By way of counterclaim, LiveComfy sought compensation of $14,724 itemised as follows: (a) unpaid rent for the period 14 June 2025 to 9 July 2025: $1,214; (b) amount repayable by Mr Williams because of Mr Williams’ alleged breach of a confidentiality agreement: $2,850; (c) rental losses said to have been incurred by LiveComfy as a result of Mr Williams’ actions towards other occupants of the Premises: $3,660; (d) costs incurred by LiveComfy in advertising for new occupants of the Premises: $1,000; and (e) compensation for alleged breaches by Mr Williams of the RT Act and of the Occupancy Agreements involving “mental harassment and intimidation to five employees of LiveComfy”: $6,000.

5. LiveComfy also sought orders in the nature of injunctions: (a) requiring the applicant to stop sending “threatening” emails to staff of LiveComfy; and (b) requiring Mr Williams to observe the terms of a confidentiality agreement entered into by him with LiveComfy.

Decisions of the Original Tribunal

6. In its First Decision, which dealt with Mr Williams’ application, the Original Tribunal declared that LiveComfy had breached its obligation to “timely lodge” (sic) a security deposit paid to it by Mr Williams, but otherwise dismissed Mr Williams’ application, including his claim for compensation. In relation to the “Illegal Occupancy Agreement” issue, the Original Tribunal found that there had been no breach of the provisions of Part 5A of the RT Act. By necessary implication, the Original Tribunal found that the documents entitled “Occupancy Agreements” were in fact “occupancy agreements” within the meaning of the RT Act.

7. In its Second Decision, dealing with LiveComfy’s application, the Original Tribunal upheld LiveComfy’s claim against Mr Williams for “unpaid rent”, but otherwise dismissed the counterclaim. The Original Tribunal made an order for Mr Williams to pay LiveComfy the sum of $1,214.

The appeals

8. Mr Williams appealed against: (a) the First Decision (other than the declaration that LiveComfy had failed to lodge his security deposit within the applicable period); and (b) the Original Tribunal’s order, as part of the Second Decision, requiring Mr Williams to pay LiveComfy $1,214.

9. LiveComfy did not appeal against either decision of the Original Tribunal. 2

10. Mr Williams alleged five errors in respect of the First Decision. In summary, these were: (a) the Original Tribunal erred in law by construing section 71CA and Part 5A of the RT Act as requiring LiveComfy to be a formal tenant under a

2 See Mr Williams’ Application for an Appeal in proceedings AA 108 of 2025 residential tenancy agreement for the occupancy agreement regime to apply; (b) the Original Tribunal erred in fact in finding that there was “no evidence” that LiveComfy played a role in the preparation or operation of the “Occupancy Agreement” between it and Mr Williams; (c) the Original Tribunal erred by failing properly to consider the consequences of its declaration that LiveComfy was 18 months’ late lodging the “bond” paid to it by Mr Williams; (d) the Original Tribunal erred in law by failing to consider section 71AA of the RT Act in relation to Mr Williams’ claim of privacy breaches; and (e) the Original Tribunal erred by failing to give adequate reasons for its decision. 3

11. Mr Williams alleged six errors in respect of the Second Decision. In summary, these were: (a) the Original Tribunal lacked power to order Mr Williams to pay unpaid “rent” to LiveComfy; (b) the Original Tribunal mischaracterised the payments made by Mr Williams under the “Occupancy Agreement” as “rent”; (c) the Original Tribunal failed to consider material evidence and prior findings relating to various matters, and denied Mr Williams procedural fairness in relation to those matters; (d) the Original Tribunal’s dismissed only four, rather than all five, of the components of LiveComfy’s counterclaim, which was internally inconsistent and involved logical error; (e) the Original Tribunal erred in law by purporting to enforce an illegal agreement, being the most recent “Occupancy Agreement” between Mr Williams and LiveComfy; and

3 See Mr Williams’ Application for an Appeal in proceedings AA 5 of 2026 (f) the Original Tribunal erred by disregarding evidence of a “Confidentiality Agreement” between the parties.

12. It can be seen that many, though not all, of the issues raised by Mr Williams, particularly in relation to the Second Decision, concern the proper legal characterisation and status of the arrangement between himself and LiveComfy relating to his occupation of Room Three at the Premises. Among other things, Mr Williams asserts that the so-called “Occupancy Agreements” between himself and LiveComfy were “unlawful” or “illegal”.

Test for appeal

13. To succeed on an appeal reviewing decisions of the Original Tribunal, the appellant must establish an error of fact, law or discretion which was material to 4 5 the result. In addition: (a) ordinarily, if there has been no further evidence admitted or no relevant change in law, an appeal tribunal can exercise its appellate powers only if satisfied that there was an error on the part of the original tribunal; (b) the appellate tribunal will give proper allowance to the advantage of the original tribunal who saw and heard the witnesses, so that, ordinarily, facts found based on the assessment of witnesses will not lightly be overturned; (c) the appeal tribunal is obliged to conduct a real review of the trial and the reasons of the original tribunal; and (d) in an appeal by way of rehearing, once error below has been found (after making proper allowance for the advantages of the original tribunal), the appeal tribunal can substitute its own decision based on the facts and the law as they now stand.

4 See for example Zeng v Crane & Anor [2022] ACAT 70 at [27] and Feng v UP 840 [2023] ACAT 8 at [7] 5 V v Elringtons Pty Ltd [2018] ACAT 23 at [23], as cited in He v Qin & Ors [2021] ACAT 129 at [43] Evidence

14. I considered all evidence adduced in the hearing before the Original Tribunal, which included: (a) assertions of fact contained in a “Summary of Dispute for ACAT Application” attached to Mr Williams’ Application lodged with the Tribunal on 10 June 2025; (b) a bundle of documents which were attached to the above Application; (c) assertions of fact contained in a document entitled “Grounds for disputing the application” and in a “Counter Claim Summary” attached to LiveComfy’s Response lodged with the Tribunal on 4 July 2025; (d) a bundle of documents which were attached to the above Response; (e) assertions of fact contained in an “Index of Documents”, further “Summary of Dispute for ACAT Application”, and Timeline lodged by Mr Williams with the Tribunal prior to the Original Hearing; (f) assertions of fact contained in an “Index of Documents” and “Timeline” lodged by LiveComfy with the Tribunal prior to the Original Hearing; (g) a bundle of documents which was attached to the Timeline lodged with the Tribunal by LiveComfy; (h) documents emailed to the Tribunal by LiveComfy on 23 October 2025; and (i) oral evidence given by each of Ganesh Pandey, Rachi Jhaveri and Mr Jin at 6 the hearing on 7 November 2025.

Factual background

15. The following matters relevant to the appeals were established by evidence adduced to the Original Tribunal:

6 Although Mr Williams had not obtained a transcript of the Original Hearing by the time of the hearing of the appeal, he was given leave to apply for a waiver of the transcript fee and to obtain the transcript in the weeks immediately following. The Appeal Tribunal subsequently received a copy of the transcript and has taken it into account in connection with the appeal. (a) On 4 May 2023, Mr Jin, in his capacity as a natural person (as tenant) and Roger Wiggins and Helen Billett (as lessors) (Owners) (the latter through their agents, Independent Property Management ACT Pty Ltd) executed a document entitled “Residential Tenancy Agreement” in respect of the Premises, the terms of which included that: Mr Jin would pay the Owners rent of $820 per week, increasing to $850 per week from 10 May 2024; the agreement was for a fixed term of two years and thereafter would turn into a periodic tenancy; up to four adults were permitted to live at the Premises; and the “Standard Residential Tenancy Terms” formed part of the 7 agreement. (b) By an email of the same date, Aska Leung, an employee of Independent Property Management, advised Mr Jin that the “owner has approved sub-letting”. (c) One week later, on 11 May 2023, Mr Williams and LiveComfy executed a document entitled “Occupancy Agreement” in respect of the “Third Room” at the Premises, the terms of which included that: Mr Williams would pay LiveComfy “rent” of $340 per week (inclusive of all bills); the agreement was for a fixed term ending on 12 July 2025 and thereafter would become a periodic agreement; and the agreement was “an occupancy agreement for the purposes of the Residential Tenancies Act 1997 (ACT)”. (d) Over the following two-year period, Mr Williams and LiveComfy executed further “Occupancy Agreements” relating to Mr Williams’ ongoing occupation of Room Three at the Premises which were in similar terms. (e) There was no written agreement between LiveComfy and Mr Jin pertaining to the Premises. In his oral evidence, Mr Jin confirmed that no such document existed, but that, as tenant under the “Residential Tenancy Agreement” with the Owners, he (Mr Jin) had entered into an implied licence agreement with LiveComfy for LiveComfy to rent the Premises to tenants.

7 The Standard Residential Tenancy Terms are set out at Schedule 1 to the RT Act (f) From time to time, other occupants resided at the Premises, each of whom also had a relationship, and communicated, with LiveComfy in connection with their occupation of the Premises. (g) On 22 February 2025, Mr Williams wrote a letter to LiveComfy advising that he and another occupant of the Premises, “Mesut”, were “generally happy” with the way LiveComfy was “managing” the Premises but that there were a series of issues, including the late lodgment of “bonds” by LiveComfy, disturbance caused by some long-term scaffolding works, and other alleged non-compliances with provisions of Part 5A of the RT Act which were of concern. Mr Williams then indicated that he and the other occupant were willing to “move forward” subject to, among other things, “a one-off payment of compensation” to each of them in the sum of $2,850, in full and final settlement of their claims. (h) On 5 March 2025, LiveComfy and Mr Williams each executed a “Confidentiality Agreement” by which, among other things, in exchange for a payment of $2,850, Mr Williams agreed, among other things: (i) to settle all of the concerns set out in his letter of 22 February 2025; (ii) not to disclose, discuss or make public any details of the Agreement; and (iii) in the future, not to publish, post or share any negative, defamatory or damaging statements about LiveComfy, its directors, staff or affiliated agencies. (i) Mr Williams subsequently was paid and accepted the sum of $2,850. (j) The relationship between Mr Williams and LiveComfy subsequently deteriorated, with each accusing the other of breaches of the “Occupancy Agreement” (among other things) and Mr Williams commencing proceedings against LiveComfy (not the present proceedings) as well as (according to him) reporting LiveComfy and/or Mr Jin to various regulatory entities; (k) On 3 June 2025, Mr Jin advised Mr Williams by email LiveComfy was “planning to apply for eviction with ACAT and seek compensation for the 8 losses that we suffered”; and (l) On 16 June 2025, Mr Williams and another occupant (“Mesut”) advised that they had vacated the Premises on 14 June 2025 (without notice).

16. I note in addition the following more general matters: (a) There was no evidence that Mr Jin himself ever resided at the Premises. (b) Mr Jin confirmed in the course of the appeal hearing that he had never lived, nor intended to live, at the Premises. (c) From time to time, Mr Williams and other occupants had email communications about aspects of their occupation of the Premises with representatives of LiveComfy including “Jerry Lu, Operations Manager”, “Mindy Ler, Assistant Property Manager”, and “Zheng Bi, Property Onsite Assistant”. It was apparent as a result that LiveComfy was a commercial operation with multiple employees. (d) LiveComfy styled itself in its email communications with Mr Williams and the other occupants of the Premises as a commercial entity involved in the letting and management of individual rooms in apartment group living 9 arrangements. (e) The agents who were managing the Premises for the Owners, Independent, appear to have had at least some email dealings with representatives of LiveComfy in relation to the Premises.

Consideration of appeals – introduction

17. As noted above, a number of the appeal grounds raised by Mr Williams raise the issue of the proper legal characterisation and status of the arrangement between himself and LiveComfy (Legal Characterisation Issue) pertaining to his occupation of the Third Room at the Premises. That issue is of some legal

8 Mr Williams appears to have asserted at times that this was a termination notice, although it was not relied on as such by LiveComfy 9 “Letting out” is used here in a lay sense, and not to connote the legal characteristics associated either with a “residential tenancy agreement” or an “occupancy agreement” within the meaning of the RT Act complexity and will be discussed later in these reasons. I start by dealing, to the extent possible, with some of the other grounds raised by Mr Williams.

Appeal against the First Decision

Ground 1 – alleged error of law in construction of section 71CA and Part 5A of the RT Act

18. This ground involves a misconception.

19. The Original Tribunal did not construe section 71CA of the RT Act in the manner asserted by Mr Williams – that is, as “requiring LiveComfy Real Estate Pty Ltd to be a formal tenant under a residential tenancy agreement in order for the 10 occupancy agreement regime to apply”.

20. The effect of the Original Tribunal’s decision was rather that the provisions of Part 5A did apply to the “Occupancy Agreement” between Mr Williams and LiveComfy. That was because, in the Original Tribunal’s view, the prohibition in section 71CA(a) —– on the tenant under a residential tenancy agreement also being the “grantor” under an occupancy agreement —– was not breached. That was because, in the present case, the “tenant” was Mr Jin personally whereas the “grantor” was LiveComfy.

21. Ground 1 must be dismissed.

Ground 2 – alleged error of fact regarding preparation or operation of “Occupancy Agreement”

22. Mr Williams alleges that the Original Tribunal “erred in fact by concluding that there was ‘no evidence’ that LiveComfy played a role in the preparation or operation of the occupancy agreement”.

23. This error is established.

24. The reasoning of the Original Tribunal in relation to what it described as the “Illegal Occupancy agreement” issue is difficult to follow. It appears that the central point sought to be made, as identified in the discussion of Ground 1 above,

10 RT 689/2025 – Williams v LiveComfy Real Estate Pty Ltd Reasons for Appeal dated 15 December at [1] is that whilst the “tenant” under the “Residential Tenancy Agreement” was Mr Jin personally, the “grantor” under the “Occupancy Agreement” was LiveComfy, meaning the prohibition in section 71CA of the RT Act was not breached. It seems the Original Tribunal concluded, without further analysis, that therefore there was an “occupancy agreement” which complied with the provisions of Part 5A of the RT Act between Mr Williams and LiveComfy.

25. The discussion at [10] of the First Decision, however, is less than satisfactory. There is a reference to “respondents” when there was only a singular respondent to the proceedings before the Original Tribunal, and the observation that “the respondents [sic] are not party to any agreement between Mr Jin nor LiveComfy Pty Ltd and the applicant” is grammatically meaningless.

26. The specific finding attacked by the appellant is: “There was no evidence before the Tribunal that they played any role in the preparation of the occupancy agreement” (emphasis added). The word “they” in this sentence appears to be a reference to the “respondents” identified in the previous sentence. As already noted, however, there was only one respondent.

27. To the extent to which the Original Tribunal was intending to suggest that there was no evidence that LiveComfy was involved in the preparation of the written “Occupancy Agreement”, I agree with Mr Williams that there was evidence to that effect. For example, the “Occupancy Agreements” were printed on “LiveComfy” letterhead, a clear indication that they had been prepared by or on behalf of LiveComfy.

28. The appellant has established an error of fact with respect to this issue. Ultimately, however, the error is inconsequential in light of my conclusion as to more fundamental errors of law made by the Original Tribunal in relation to the Legal Characterisation Issue (as further discussed below).

Ground 3 – alleged failure properly to consider the consequences of LiveComfy’s late lodgment of “bond”

29. The Original Tribunal declared that LiveComfy “failed to timely lodge [sic] security deposit [‘bond’] paid by [Mr Williams] to LiveComfy on 11 May 2023 with the correct authority in accordance with the provisions of section 71ED of the Residential Tenancies Act 1997 by failing to lodge the sum paid to it until 31 January 2025”.

30. It is implicit in the Original Tribunal’s declaration that it concluded that the arrangement between LiveComfy and Mr Williams was an occupancy agreement within the meaning of Part 5A of the RT Act, and hence that the “security deposit” paid by Mr Williams was required to have been lodged by LiveComfy with the Territory.

31. LiveComfy conceded before the Original Tribunal that it did not deposit any amount with the Territory until January 2025.

32. Mr Williams complains that, having made the above declaration, the Original Tribunal ought to have gone further, for example by awarding him compensation, referring LiveComfy to the relevant regulator, and/or “assessing whether the breach corroborated broader unlawful conduct”.

33. Some initial observations may be made in relation to Mr Williams’ complaints: (a) Mr Williams did not establish that the late lodgment with the Territory of his bond/security deposit by LiveComfy had caused him any financial loss. On the evidence, Mr Williams ultimately received a full refund of the security deposit. (b) In any event, by entering into the “Confidentiality Agreement” in March 2025, Mr Williams expressly compromised any rights he may have had in respect of the late lodgment of the security deposit in exchange for a payment of $2,850. (c) The Original Tribunal did not, as part of the First Decision, make any determination about whether or not LiveComfy’s late lodgment of the security deposit would be referred to any regulator. Accordingly, this issue fell outside the scope of Mr Williams’ appeals.

34. More fundamentally, however, as I explain below, I have concluded that the arrangement between LiveComfy and Mr Williams was not an occupancy agreement within the meaning of the RT Act. In the result, this alleged error of the Original Tribunal falls away. Ground 4 – alleged failure to consider “s 71AA” of the RT Act in relation to privacy breaches

35. Both Mr Williams’ application before the Original Tribunal and his application for an appeal make reference to “s 71AA” of the RT Act. According to Mr Williams’ submission before the Original Tribunal, there is a provision in the RT Act entitled “Section 71AA – Confidentiality of Information (for Occupancy Agreements)”.

36. No such provision exists, nor has it ever existed. There is a section 71AA of the RT Act, which was incorporated into the Act in 2019, but it deals with entirely 11 different subject matter. It appears Mr Williams hallucinated the content of section 71AA which he asserts.

37. In any event, as noted by the Original Tribunal, LiveComfy is a private sector entity with (on the available evidence) an annual turnover of less than $3 million. 12 Accordingly, LiveComfy is not bound by the Privacy Act.

38. Further still, the Tribunal has no jurisdiction with respect to alleged breaches of federal privacy legislation, nor does it have general jurisdiction with respect to 13 alleged breaches of ACT privacy legislation.

39. Accordingly, there is no basis for interfering with the Original Tribunal’s decision refusing to make a declaration as to supposed privacy breaches by LiveComfy.

Ground 5 – failure to give adequate reasons

40. Numerous factual disputes involving allegation and counter-allegation were litigated by the parties before the Original Tribunal. The Original Tribunal made concise findings as to many of these disputes, indicating in respect of some

11 Section 71A defines the meaning of “minor modification” and “special modification” for the purposes of Part 5AA of the RT Act 12 Similarly, the Information Privacy Act 2014 (ACT) only applies to Territory public sector agencies and service providers contracted to Territory public sector entities 13 Alleged breaches of the Information Privacy Act 2014 (ACT) are dealt with in the first instance by the ACT Information Privacy Commissioner and may thereafter in some circumstances be the subject of an application to “a court” matters that Mr Williams had not discharged his onus of establishing his allegations on the balance of probabilities.

41. Exercising the caution required of an appeal tribunal, there is no clear basis for interfering with many of the factual findings of the Original Tribunal.

42. On the other hand, however, as I have already indicated, the Original Tribunal’s discussion of the Legal Characterisation issue involved an error of fact and was confused. In my view, the Original Tribunal overlooked important considerations, which have the result that the arrangement between LiveComfy and Mr Williams was not an occupancy agreement within the meaning of Part 5A of the RT Act.

43. It follows that I accept that the reasons of the Original Tribunal were inadequate and that this ground has been established.

Appeal against the Second Decision

Grounds 1 and 2 – lack of jurisdiction to award “rent” to a “non-landlord”, “mischaracterisation of payments as rent”

44. Mr Williams complains about the order of the Original Tribunal requiring him to pay to LiveComfy an amount described as “unpaid rent” for the period 14 June 2025 to 9 July 2025. The main point made by Mr Williams appears to be that, given the Original Tribunal’s finding that the arrangement between Mr Williams and LiveComfy was an occupancy agreement, no question of “rent” arises (because consideration paid pursuant to an occupancy agreement is referred to in the RT Act as an “occupancy fee” rather than as “rent”).

45. Technically, Mr Williams may be correct. If, however, his arrangement with LiveComfy was an occupancy agreement within the meaning of Part 5A of the RT Act, the only difference might be that Mr Williams was liable to pay the same amount as “unpaid occupancy fees” rather than as “unpaid rent”.

46. The more significant question, in my view, is whether Mr Williams’ arrangement with LiveComfy was an occupancy agreement within the meaning of the RT Act.

47. I deal with this issue as part of my discussion of the Legal Characterisation Issue below.

Grounds 3, 4 and 5 – failure to consider material evidence, logical error in reasons, and failure to address “illegality”

48. A wide range of contentions is advanced by Mr Williams in support of grounds three, four and five, including assertions by Mr Williams that LiveComfy “misrepresented itself as a licensed real estate agency” and “operation [sic] without authority under the Agents Act 2003 (ACT)”. It is not necessary to resolve all of these allegations for the purposes of disposing of the appeals.

49. A point common to grounds three and four is an allegation that the Original Tribunal failed to consider LiveComfy’s capacity to claim rent from or enforce rental obligations against Mr Williams “at all”. In essence, this is the same Legal Characterisation Issue to which I have already referred. The same issue is then raised again, albeit in a slightly different way, in ground five, in relation to which Mr Williams claims that the Original Tribunal failed to address “the illegality of the underlying arrangement” between LiveComfy and Mr Williams.

50. I deal with the Legal Characterisation Issue below.

Ground 6 – alleged error in relation to confidentiality agreement

51. As noted above, one limb of the counterclaim brought by LiveComfy was an application for reimbursement of the amount of $2,850 paid by LiveComfy to Mr Williams as consideration for Mr Williams entering into the “Confidentiality Agreement” dated 5 March 2025.

52. The Original Tribunal refused to deal with this aspect of the counterclaim, finding that the Confidentiality Agreement was “a separate matter already decided”, and further suggesting that if LiveComfy wished to “reopen” the Agreement it could do so via a separate application.

53. The approach taken by the Original Tribunal favoured Mr Williams, since it had the result that the Original Tribunal declined to consider whether Mr Williams should be ordered to repay the $2,850 which LiveComfy had paid to him.

54. In the circumstances, it is not clear why Mr Williams is contending that the approach of the Original Tribunal was erroneous.

55. As it happens, ironically, I agree with Mr Williams. In my view, it was open to LiveComfy to plead the Confidentiality Agreement both as part of a response to Mr Williams’ application and as a component of a counterclaim advanced by LiveComfy. Nonetheless, as LiveComfy has not appealed the Original Tribunal’s refusal to consider LiveComfy’s claim for reimbursement of the $2,850, it is neither possible nor appropriate to consider that aspect any further.

56. Mr Williams claims that the Original Tribunal’s failure to consider evidence relating to the Confidentiality Agreement led to “an incomplete and legally flawed analysis”. Mr Williams has not elaborated upon how this is so, nor how a proper analysis of the Confidentiality Agreement would have resulted in the Original Tribunal not ordering him to pay “unpaid rent”. This appeal ground is not established.

Why the appeal must succeed – the Legal Characterisation Issue

57. I have concluded that, properly analysed, and notwithstanding the existence of a so-called written “Occupancy Agreement” executed by each of LiveComfy and Mr Williams, there was in fact no enforceable agreement of any kind between those entities. Accordingly, in finding that there was an “occupancy agreement” which complied with the provisions of Part 5A of the RT Act, the Original Tribunal erred in law.

58. I have further found that, in the circumstances, the Original Tribunal had no power to order Mr Williams to pay “unpaid rent” to LiveComfy relating to the period 14 June 2025 to 9 July 2025. Accordingly, the order for Mr Williams to pay the sum of $1,214 to LiveComfy must be set aside.

59. I explain the stages in my reasoning process below.

The “Residential Tenancy Agreement” between the Owners and Mr Jin

60. As I have noted above, on 4 May 2023, Mr Jin (as tenant) and the Owners (as lessors) executed a document entitled “Residential Tenancy Agreement” in respect of the Premises with a fixed term of two years and which, among other things, incorporated the Standard Residential Tenancy Terms set out at Schedule 1 of the RT Act (Standard RTA Terms) into the agreement.

61. By virtue of section 6A of the RTA Act, an agreement is a “residential tenancy agreement” for the purposes of that Act if (underlining added): (a) under the agreement— (i) a person gives someone else (the tenant) a right to occupy stated premises; and (ii) the premises are for the tenant to use as a home (whether or not together with other people); and (iii) the right is given for value; and (b) the agreement is not an occupancy agreement under section 71C.

62. It has previously been held by the Tribunal that a company cannot be a tenant for the purposes of a residential tenancy agreement because a company cannot use premises “as a home”. In Diplome Australia Pty Ltd v Singh & Anor [2021] 14 ACAT 75, the Tribunal observed: A home provides a place for people to live, enabling them to meet their human needs for safety, security and reset. A safe and habitable home enables people to access their fundamental human rights to health, education, employment, privacy and family. A company does not have the same needs as a person and cannot have a ‘home’ of the type envisaged by 15 section 6A of the RTA.

63. On its face, the “Residential Tenancy Agreement” executed by each of Mr Jin and LiveComfy satisfies the statutory definition of “residential tenancy agreement” in the RT Act. Although it did not, in terms, require Mr Jin himself to occupy and use the Premises as a home, it was entitled “Residential Tenancy Agreement”, incorporated the Standard RTA terms, and had numerous provisions which seem to assume that Mr Jin himself would be residing at the Premises, such as: (a) a requirement for Mr Jin to obtain the Owners’ consent before keeping a pet on the Premises;

14 At [16] 15 See also Chen & Anor v United Arab Emirates [2023] ACAT 42 at [13] (b) provision for a bond of $3,280, to be paid by Mr Jin, to be lodged with ACT Rental Bonds; (c) a guarantee on the part of the Owners that there was no legal impediment “to the use of the premises for residential purposes by the tenant” (emphasis added); (d) an obligation on the Owners not to cause any interference “with the reasonable peace, comfort or privacy of the tenant in the use by the tenant of the [P]remises” (emphasis added); and (e) a provision that “the tenant has exclusive possession of the [P]remises … from the date of the commencement of the tenancy agreement”.

64. On the other hand, however, Mr Jin admitted to the Tribunal that he never lived, nor intended to live, at the Premises. It seems rather that, from the outset, Mr Jin’s intention was to let out individual rooms in the Premises, through the company which he controlled, LiveComfy, for profit.

65. In the circumstances, it appears that either: (a) the agreement between the Owners and Mr Jin was not a “residential tenancy agreement” within the meaning of the RT Act; or (b) Mr Jin (knowingly or otherwise) was in breach of a fundamental term of that agreement from the outset, namely, that he personally occupy and use the Premises as a home.

66. It is also not clear whether the Owners, or alternatively their agents, either knew or intended that Mr Jin had no intention personally to occupy the Premises as a home.

67. Ultimately, it is not necessary to resolve these factual issues for the purposes of the appeals. It is sufficient to note that, at least from Mr Jin’s point of view, his agreement with the Owners was a “residential tenancy agreement” in name only. Did LiveComfy have authority from the Owners to enter into occupancy agreements in respect of the Premises?

68. Self-evidently, LiveComfy was not a party to the “Residential Tenancy Agreement” between Mr Jin and the Owners. Accordingly, LiveComfy did not acquire any rights in respect of the Premises from that Agreement.

69. The Owners’ agents had, however, advised Mr Jin in writing, on the day the “Residential Tenancy Agreement” was executed, that the “owner has approved sub-letting” (emphasis added).

70. A sublease, by definition, is an agreement between the party that is the tenant under a head lease (as sublessor) and a third party (as subtenant) in respect of all or part of the premises which are the subject of the head lease. A sublease is distinct from an assignment of a tenancy, which involves the transfer of the rights 16 and status as a tenant (or some portion thereof) to a new person.

71. Section 128 of the RT Act distinguishes between subletting and assignment of a tenant’s interest (underlining added): 128 Purported co-tenancy, assignment or subletting (1) This section applies if, in contravention of this Act, a tenant under a residential tenancy agreement for premises purports to— (a) consent to a person becoming a co-tenant under the agreement; or (b) assign the tenant’s interest under the agreement; or (c) sublet the premises. (2) The purported co-tenancy, assignment or subletting is unenforceable and the person living in premises under the purported co-tenancy, assignment or subletting, does so as a licensee only. (3) Subsection (2) does not apply to a co-tenancy, assignment or subletting of premises in accordance with a term of the residential tenancy agreement endorsed by the ACAT.

72. It follows from the above that the Owners’ authorisation of “subletting” of the Premises, communicated to Mr Jin on 4 May 2023, did not constitute permission from the Owners for Mr Jin to assign his interest as tenant to a third party.

16 See e.g. Anforth, Christensen & Adkins, Residential Tenancies: Law and Practice New South Wales th (The Federation Press, 8 ed) at [2.74.1] Specifically, the email from the Owners’ agent was not an authorisation for Mr Jin to assign his interest as tenant to LiveComfy.

73. Accordingly, on the evidence before the Original Tribunal, the Owners did not, directly or indirectly, authorise or empower LiveComfy to do anything in respect of the Premises.

Was Mr Jin’s purported licence to LiveComfy to enter into occupancy agreements valid?

74. Before the Original Tribunal, Mr Williams queried how LiveComfy could possibly have granted him occupancy rights under the purported “Occupancy Agreement” when it was Mr Jin, not LiveComfy, who was the tenant under the agreement with the Owners. The Original Tribunal regarded this as “a good 17 question”.

75. The answer given by Mr Jin was that he had given an implied licence to 18 LiveComfy.

76. Although it was not explicitly stated, the effect of the decision of the Original Tribunal is that the Original Tribunal accepted Mr Jin’s explanation. Otherwise, there was no basis for granting any remedy at all in favour of LiveComfy, nor in particular upholding LiveComfy’s claim for unpaid rent under the “Occupancy Agreement”.

77. There are, however, a number of problems with Mr Jin’s explanation.

78. The first is that, in order for a power to enter into occupancy agreements to have been transferred from Mr Jin to LiveComfy, it must have been a power which Mr Jin held in the first place. If the proper interpretation of the agreement between the Owners and Mr Jin is that it was a “residential tenancy agreement” within the meaning of the RT Act, it necessarily follows that Mr Jin lacked power to enter into occupancy agreements in respect of the Premises. That is because, as Mr Williams repeatedly emphasised before the Original Tribunal, Mr Jin was a

17 Transcript of hearing dated 7 November 2025 page 132 line 6 18 Transcript of hearing dated 7 November pages 132 – 134. Mr Jin repeated this explanation during the hearing of the appeal. “tenant” under the residential tenancy agreement with the Owners and the effect of section 71CA(a) of the RTA Act is that such a person cannot also be the “grantor” under an occupancy agreement in respect of the same premises.

79. Secondly, if for some reason the agreement between the Owners and Mr Jin was technically not a residential tenancy agreement within the meaning of the RT Act (e.g. because Mr Jin himself had no intention to occupy the Premises as a home), it was nevertheless, in my view, a written agreement which manifested an intention that Mr Jin was precluded from assigning rights under it to a third party, and in particular was precluded from assigning rights to a corporation operating an enterprise of letting out individual rooms in the Premises, and in other locations around Canberra, for profit. In my view, this conclusion necessarily flows from the following terms of the written agreement (which are still required to be construed by the Tribunal and, to the extent possible, given effect): (a) the title of the agreement, being “Residential Tenancy Agreement”; (b) the provisions of the Agreement, and of the Standard RTA terms, already referred to, premised on the assumption that the tenant Mr Jin would occupy the Premises and use them as a home; and (c) clause 17 of the “Residential Tenancy Agreement”, which expressly incorporated the Standard RTA terms by reference, which in turn provided at clause 72 that (emphasis added): Tenant must not sell, dispose of, or sublet tenancy without consent of lessor 72 (1) The tenant must not assign or sublet the premises or any part of them without the written consent of the lessor. (2) Consent may be given at any time. (3) No rights in relation to the premises may be created in any third party before consent is obtained from the lessor.

80. A third reason for the Tribunal not to give effect to a supposed implied licence given by Mr Jin to LiveComfy involves public policy considerations. The effect of recognising the supposed licence is that it would facilitate the operation of a business enterprise which involved the following elements: (a) Mr Jin entering or purporting to enter into a “Residential Tenancy Agreement” with no actual intent to occupy the relevant property as a home; and (b) the protections available to Mr Williams and other occupants of the Premises are diluted from those which would have arisen under a bona fide subletting arrangement (i.e. those applicable to “residential tenancy agreements” within the meaning of the RT Act) to those applicable in respect of occupancy agreements within the meaning of Part 5A of the RT Act.

81. The better view is that LiveComfy never had power or authority to enter into any form of agreement, with anyone, relating to occupation of the Premises, and that the “Occupancy Agreements” purportedly entered into by LiveComfy and Mr Williams were void from the outset.

82. It follows, in my view, that LiveComfy had no capacity to sue Mr Williams for “unpaid rent” relating to the alleged “Occupancy Agreement” regarding the Premises, or at all. Accordingly, Mr Williams’ appeal relating to the Second Decision should be upheld and the order for Mr Williams to pay LiveComfy $1,214 should be set aside.

What was the basis for Mr Williams’ occupation of the Premises?

83. Mr Williams, LiveComfy and Mr Jin appear to have proceeded on the assumption, between May 2023 and June 2025, that there were a series of enforceable occupancy agreements in force between Mr Williams and LiveComfy. Among other things, Mr Jin and/or LiveComfy allowed Mr Williams to occupy the Third Room at the Premises, and Mr Williams paid rent to LiveComfy. The parties voluntarily agreed to the terms set out in the “Occupancy Agreements” and provided and received consideration. Mr Williams then voluntarily compromised at least some of his potential rights associated with irregularities regarding the Occupancy Agreements by accepting a payment in exchange for entering into a Confidentiality Agreement.

84. Once the putative but invalid “Occupational Agreement” between Mr Williams and LiveComfy falls away, it may be that the proper characterisation of the basis for Mr Williams’ occupation of the Premises is that he was in fact party to an implied residential tenancy agreement with Mr Jin personally, or was a bare licensee permitted by Mr Jin (and Mr Jin’s representatives or agents) personally to occupy the Premises. Certainly, it was Mr Jin who purported to enter into the Occupancy Agreements on behalf of LiveComfy and Mr Jin who was in a position, because of the “Residential Tenancy Agreement”, to sublet the Premises.

85. Whether my finding as to the invalidity of the Occupancy Agreement necessitates any financial adjustment as between the parties is a matter which can be explored, if necessary, at a later date. It does not follow that, because I have differed from the Original Tribunal as to the validity of the Occupancy Agreement, I would necessarily allow some or any of Mr Williams’ various claims for compensation.

Resolution AA 5 of 2026

86. In respect of the Second Decision, the appropriate order is that Mr Williams’ appeal be upheld and paragraph 1 of the orders of the Original Tribunal made on 9 January 2026 (requiring Mr Williams to pay to LiveComfy the sum of $1,214 for “unpaid rent”) be set aside.

AA 108 of 2025

87. Resolution of the appeal relating to the First Decision is more difficult. Although Mr Williams at times asserted that the Occupancy Agreement was invalid, the simple fact that his proceedings were brought only against LiveComfy, as well as some of his individual claims (e.g. that he was entitled to compensation for the late lodgment by LiveComfy of his bond with ACT Rental Bonds) involved an assumption that there was a valid occupancy agreement, or alternatively a residential tenancy agreement, within the meaning of the RT Act, in force.

88. In my view, both parties need the opportunity to address the Tribunal on what if any further orders should be made in light of my finding that the purported “Occupancy Agreements” between Mr Williams and LiveComfy was void from the outset.

89. The appropriate outcome in proceedings AA 108 of 2025 is that the proceedings be listed for further hearing before the Appeal Tribunal as to the appropriate consequential orders to be made in light of the Appeal Tribunal’s findings to date.

……………………………….. Presidential Member M Hassall

Date of hearing: 21 April 2026 Applicant: In Person Respondent: In Person