Mae v Ho and ors [2021] NSWCATAP 5

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Mae v Ho and ors [2021] NSWCATAP 5 Hearing dates: 16 December 2020 Date of orders: 11 January 2021 Decision date: 11 January 2021 Jurisdiction: Appeal Panel Before: G Blake AM SC, Senior Member Dr J Lucy, Senior Member Decision: We make the following orders: (1) the time for the appellant to lodge the appeal against the decisions in proceedings RT 20/22863 and proceedings RT 20/22864 is extended to 8 October 2020; (2) leave to appeal, insofar as it is required, is refused; (3) the appeal is dismissed. Catchwords: APPEALS – Nature of new hearing LEASES AND TENANCIES – Whether agreement to rent a commercial warehouse is a lease or a licence – Where studios in warehouse rented to occupants with right to use facilities and common areas – Where each rental agreement is stated to be a commercial agreement with no permission granted to live in the premises – Where landlord provides beds and occupants in fact live in the premises to the landlord's knowledge - Whether the agreement between the landlord and each of the occupants is a sham – Whether the agreements are properly characterised as residential tenancy agreements under the Residential Tenancies Act 2010 (NSW) or occupancy agreements under the Boarding Houses Act 2012 (NSW) - Whether the Tribunal has jurisdiction to determine dispute between the landlord and each of the occupants – Whether the occupants are entitled to the return of their rental bond or security deposit when the landlord is evicted from the premises Legislation Cited: Boarding Houses Act 2012 (NSW), ss 4, 5, 27, 30, 31, 32 Civil and Administrative Tribunal Act 2013 (NSW), ss 36, 41, 80, Sch 4, cl 12 Civil and Administrative Tribunal Rules 2014 (NSW), r 25 Residential Tenancies Act 2010 (NSW), ss 3, 7, 8, 12, 13, 157, 175 Residential Tenancies Regulation 2019 (NSW), cl 39, Part 4 Cases Cited: Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 C G Constructions Pty Limited v Hanson Constructions Materials Pty Limited [2017] NSWCATAP 130 Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 CSR Ltd v Maddalena [2006] HCA 1; (2006) 224 ALR 1 Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55, (2004) 218 CLR 471 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Pearson v Clark [2016] NSWCATAP 134 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Raftland Pty Ltd v Federal Commissioner of Taxation [2008] HCA 21, 238 CLR 516 Swan v Uecker [2016] VSC 313; (2016) 50 VR 74 Texts Cited: None cited Category: Principal judgment Parties: Garnet Mae (Appellant) Katherine Ho (First Respondent) Lauren Rhall (Second Respondent) David Aznar Mathonneau (Third Respondent) Randolph Fields (Fourth Respondent) Alvaro Francisco Estrada Jimenez (Fifth Respondent) Cassandra Marie Lefebvre (Sixth Respondent) Iane Silva Da Cruz (Seventh Respondent) Tim Chang (Eighth Respondent) Representation: Appellant (Self-Represented) K Ho (Self-Represented) (Agent on behalf of other Respondents) File Number(s): AP 20/42767 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 3 September 2020; 30 September 2020 Before: G Bassett, General Member File Number(s): RT 20/22688; RT 20/22863; RT 20/22864