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 REASONS FOR DECISION Introduction 1. This is an internal appeal from three decisions of the Consumer and Commercial Division of the Tribunal, two of which were made on 3 September 2020, and the other of which was made on 30 September 2020. In each decision, the Tribunal made orders in relation to the return of a rental bond or security deposit paid by each of the respondents to the appellant Garnet Mae in respect of part of the premises at Newtown (the premises). 2. We have decided to refuse leave to appeal insofar as it is required, and to dismiss the appeal. The background 1. On 16 October 2019, Rodney Kenneth Clarke and Stella Maris Grisberg (the previous owners) as "Licensor" and the appellant as "Licensee" entered into an agreement described as a "Rental Agreement" whereby the appellant agreed to "the rental" of the premises for a term commencing on 16 October 2019 and ending on 6 April 2020 at a rent of $1,250 per week to be paid monthly in advance (the 16 October 2019 agreement). The premises is a two storey warehouse, zoned general residential. 2. Subsequent to entry into the 16 October 2019 agreement, the appellant paid rent to the previous owners and progressively created ten rooms described as studios in the premises. 3. Commencing in December 2019, the appellant advertised furnished rooms with shared living area, kitchen and bathroom on the flatmates.com.au website. 4. On various dates between 1 January 2020 and 4 May 2020, the appellant and each of the first to eighth respondents entered into an agreement whereby the appellant agreed to lease a studio at the premises to the respondent at a rent payable weekly and under which a bond of up to four weeks rent was paid. We will refer to the agreements between the appellant and each of the respondents as the sub-leases, because this is what the parties called them, without necessarily accepting that this is their proper characterisation. 5. The sub-leases were made as follows: 1. there was a written agreement with the first to eighth respondents other than the second respondent in a document which is described as a "Contract for sub-lease" and which is signed by or on behalf of the parties; 2. there was an oral agreement with the second respondent which was made between a woman named Angelica on behalf of the appellant and the second respondent. 1. Subsequently to 6 April 2020, the appellant continued to pay rent for the premises to the previous owners. 2. On 15 May 2020, the sale of the premises by the previous owners to 10 Egan Street Pty Ltd (the new owner) was completed, and the appellant was directed to pay all future rent instalments to the new owner. 3. On 24 May 2020, Terry Younes (Mr Younes), the director of the new owner, changed the locks to the premises and excluded the appellant from the premises. 4. Subsequently to 24 May 2020, the following eight proceedings were commenced in the Tribunal: 1. proceedings RT 20/22688 between the first respondent as the applicant and the appellant as the respondent (the RT 20/22688 proceedings), in which the first respondent sought the return of her bond; 2. proceedings RT 20/22863 between the fourth to seventh respondents as the applicants and the appellant as the respondent (the RT 20/22863 proceedings), in which the fourth to seventh respondents sought the return of their bonds; 3. proceedings RT 20/22864 between the second, third and eighth respondents as the applicants and the appellant as the respondent (the RT 20/22864 proceedings), in which the second, third and eighth respondents sought the return of their bonds; 4. proceedings RT 20/27349 between the appellant as the applicant and the first respondent as the respondent (the RT 20/27349 proceedings), in which the appellant sought a termination order and compensation; 5. proceedings RT 20/27396 between the appellant as the applicant and the fourth to seventh respondents as the respondents (the RT 20/27396 proceedings), in which the appellant sought termination orders and compensation; 6. proceedings RT 20/27429 between the appellant as the applicant and the second, third and eighth respondents as the respondents (the RT 20/27429 proceedings), in which the appellant sought termination orders and compensation; 7. proceedings RT 20/23652 between the appellant as the applicant and Mr Younes as the respondent (the RT 20/23652 proceedings); 8. proceedings RT 20/30275 between the appellant as the applicant and Mr Younes as the respondent (the RT 20/30275 proceedings). The proceedings against Mr Younes 1. On 29 May 2020, the RT 20/23652 proceedings were commenced by the filing of an application in which the appellant claimed an order against Mr Younes under s 187(1)(d) of the Residential Tenancies Act 2010 (NSW) (RT Act). 2. On 14 July 2020, the RT 20/30275 proceedings were commenced by the filing of an application in which the appellant claimed orders against Mr Younes under ss 44(1)(b), 73(a), 73(b), 73(c), 111 and 125 of the RT Act. 3. On 30 July 2020, the RT 20/23652 and RT 20/30275 proceedings were heard together. 4. On 4 August 2020, the Tribunal made a decision dismissing the RT 20/23652 and RT 20/30275 proceedings (the RT 20/23652 and RT 20/30275 decisions) on the ground of lack of jurisdiction for the following reasons: 1. the 16 October 2019 agreement was not a residential tenancy agreement within the meaning of the RT Act (at [9]); 2. the RT Act does not apply to the premises pursuant to s 7(h) (at [11]): "…I am satisfied that the predominant purpose of Mr Mae's agreement to occupy the property was for an art gallery which subsequently changed to the business of providing accommodation (albeit not permitted by the local council). …" 1. it followed that the Tribunal did not have jurisdiction to determine the dispute in the RT 20/23652 and RT 20/30275 proceedings under the RT Act. 1. The appellant has not appealed against the RT 20/23652 and RT 20/30275 decisions. The RT 20/22688, RT 20/22863, RT 20/22864, RT 20/27349, RT 20/27396 and 20/27429 proceedings 1. On 24 May 2020, the RT 20/22688, RT 20/22863 and RT 20/22864 proceedings were commenced by the filing of an application in which each of the first to eighth respondents claimed an order under s 175 of the RT Act. Section 175(1) of the RT Act empowers the Tribunal to make an order as to the payment of the amount of the rental bond. 2. On 24 June 2020, the RT 20/27349, RT 20/27396 and 20/27429 proceedings were commenced by the filing of an application in which the appellant claimed a termination order for non-payment of rent under s 87 of the RT Act and an order as to compensation under s 187(1)(d) of the RT Act. The application in the RT 20/27396 proceedings set out the following information as to the reasons for the orders sought against the fourth respondent: "Randolph Fields has an agreement with me to sublease a room at [address omitted] from 11th January 2020 for $250 per week including bills. Two weeks after this period Mr Fields started paying a reduced rent of $235 per week. This was never discussed or agreed to by me until he asked for a rent reduction on 28th April due to financial suffering from Covid 19. I asked Mr Fields to provide some evidence as to this suffering, but he point blank refused. I also suggested that he was already receiving a reduced rent, given a room of his nature at the warehouse was now being rented for $350pw. I also mentioned that he had been paying a self-imposed reduced rent of $15 per week two weeks he moved in. I was happy for him to continue paying this reduced rent, but Mr Fields refused to pay any further rent and his actual four weeks bond expired on 18th May 2020. I was happy for him to have the reduced rent until the issues with Covid 19 subsided, but this is no longer the case and I request NCAT to issue an order for him to repay me the rent he owes me from this date until 22nd July as I have issued him with another termination noticed for this date. This figure is $2,321." 1. On 31 July 2020, the RT 20/22688, RT 20/22863, RT 20/22864, RT 20/27349, RT 20/27396 and 20/27429 proceedings were heard together. 2. The appellant tendered a bundle of documents in each of the RT 20/27349, RT 20/27396 and 20/27429 proceedings. 3. The evidence before the Tribunal included: 1. the 16 October 2019 agreement; 2. Contract for sub-lease between the appellant and the first respondent dated 7 January 2020 for studio room 4 commencing on 5 January 2020 at a weekly rent of $250 and in which the appellant acknowledged receipt of two weeks rent in advance of $500 and four weeks bond of $1000 (the Ho sub-lease); 3. Contract for sub-lease between the appellant and the third respondent dated 26 February 2020 for studio room 27 commencing on 5 February 2020 at a weekly rent of $300 and in which the appellant acknowledged receipt of two weeks rent in advance of $600 and four weeks bond of $1200 (the Mathonneau sub-lease); 4. Contract for sub-lease between the appellant and the fourth respondent dated 11 January 2020 for studio room 4 commencing on 11 January 2020 at a weekly rent of $250 and in which the appellant acknowledged receipt of two weeks rent in advance of $500 and four weeks bond of $1000 (the Fields sub-lease); 5. Contract for sub-lease between the appellant and the fifth respondent dated 4 April 2020 for studio room 2A commencing on 4 April 2020 at a weekly rent of $250 and in which the appellant acknowledged receipt of two weeks rent in advance of $500 and four weeks bond of $1000 (the Jimenez sub-lease); 6. Contract for sub-lease between the appellant and the sixth respondent dated 12 March 2020 for studio room 2C commencing on 13 March 2020 at a weekly rent of $350 and in which the appellant acknowledged receipt of two weeks rent in advance of $700 and four weeks bond of $1400 (the Lefebvre sub-lease); 7. Contract for sub-lease between the appellant and the seventh respondent dated 30 April 2020 for studio room 2I commencing on 4 May 2020 at a weekly rent of $225 and in which the appellant acknowledged receipt of two weeks rent in advance of $450 and two weeks bond of $450 (the Cruz sub-lease); 8. Contract for sub-lease between the appellant and the eighth respondent dated 26 February 2020 for studio room 1 commencing on 24 and ending on 24 May 2020 at a weekly rent of $275 and in which the appellant acknowledged receipt of two weeks rent in advance of $550 and two weeks bond of $1150 (the Chang sub-lease). 1. The 16 October 2019 agreement was a typed two page document containing the following headings: "Licensor"; "Licensee"; "Property"; "Rental Amount", "Payment of Rent"; Deposit"; "Payment of Outgoings"; "Term of the Agreement"; "Vacate Date"; "Binding Agreement". 2. The Contract for sub-lease was a typed single page document largely in a standard form for each of the first and third to eighth respondents with the underlined blank spaces completed in handwriting and with the later Contracts having some additional clauses. 3. The Ho sub-lease relevantly provided: "I, Garnet Mae [mobile telephone number omitted], do hereby lease studio Room 4 on this day 5 Jan to Katherine Ho Mobile Number: [omitted] ID Number [omitted] On this day I receive two (2) weeks rent in advance $ 500 and four (4) weeks bond $ 1000 The weekly rent is $ 250 including expenses and must be kept two weeks in advance at all times. This lease is for a minimum period of three (3) months. Should either party wish to dissolve this lease four (4) weeks notice will need to be given. I have received a total of $ 1500. The next rent payment will be due two weeks from today (19 Jan) and must be paid into the following bank account: Bank: [omitted] Account Name: [omitted] BSB Number: [omitted] Account Number: [omitted] Terms & Conditions Cleanliness - All tenants are responsible for maintaining the cleanliness of their studio & shared areas including the bathrooms. Everyone should clean up after themselves and be considerate of the other artists. Bins - All tenants must ensure that the bins get emptied regularly and do not pile up in the kitchen. Rent - Rent must be paid on or by the due date, allow up to one working day prior of the due date for your rent to be transferred via bank transfer. - Should your rent payments fall behind by four weeks you will need to vacate on the day your bond expires. Smoking - Smoking is not permitted in the interior of the warehouse; smoking is only permitted outside. - If a smoke detector is triggered by accident and a fire truck is dispatched to the property, the person responsible for falsely triggering the alarm will be responsible to pay the call out fee. This fee is in excess of $1000. Breakages - All tenants are responsible for replacing/repairing any items that they break/damage that have been provided for them e.g. crockery, furnishings etc. If the tenant is unable to do so, or unable to find an agreeable replacement, the retail cost of said item will be taken from the bond + for time to purchase replacement. Vacating - When the tenant chooses to or is requested to vacate the property, the studio is to be left in a clean and undamaged state. Any cleaning or repairs required after the tenant has moved out will be charged for from the bond before it is returned." 1. The Fields sub-lease was, apart from the underlined blank spaces, completed in handwriting in the same from as the Ho sub-lease. 2. The Jimenez sub-lease, the Cruz sub-lease and the Chang sub-lease were, apart from the underlined blank spaces, completed in handwriting in the same from as the Ho sub-lease with the following additional clauses under the heading "Terms & Conditions": "Fair Energy Use – Energy consumption should not exceed $20 per tenant per week. If the energy consumption exceeds $20 per tenant per week, the excess will be equally divided amongst all tenants. Tenancy – This studio is leased strictly as a work space and the tenant agrees that they shall not reside in the premises." 1. The Mathonneau sub-lease was, apart from the underlined blank spaces, completed in handwriting in the same from as the Ho sub-lease with the following additional clauses under the heading "Terms & Conditions": "Fair Energy Use – Energy consumption should not exceed $20 per tenant per week. If the energy consumption exceeds $20 per tenant per week, the excess will be equally divided amongst all tenants. Residents – This room is leased to you and only you. If you wish for another party to stay with you or instead of you seven days or longer in your room, this has to be discussed and approved with the housemates & Garnet. An additional person staying in your room for longer than seven days will need to pay an extra $80pw including bills." 1. The appellant's bundle of documents in each of the RT 20/27396 and 20/27429 proceedings included a submission in which the appellant relevantly states: 1. that he leased "a commercial warehouse space"; 2. that it was explained to each of the second to eighth respondents at the time of their lease that the premises "was a commercial property and that they were not permitted to live there and would be officially renting the space as a commercial studio to work from. The respondents all agreed to the conditions and signed their respective leases." 1. Each of the first to eighth respondents tendered an affidavit or witness statement as follows: 1. the affidavit of the first respondent dated 3 June 2020 (the Ho affidavit); 2. the witness statement of the second respondent dated 3 June 2020 (the Rhall witness statement); 3. the witness statement of the third respondent dated 3 June 2020; 4. the witness statement of the fourth respondent dated 5 June 2020 (the Fields witness statement); 5. the witness statement of the fifth respondent dated 3 June 2020; 6. the witness statement of the sixth respondent dated 4 June 2020; 7. the witness statement of the seventh respondent dated 3 June 2020; 8. the witness statement of the eighth respondent dated 3 June 2020. 1. The affidavit or witness statement of each of the first to eighth respondents relevantly included a copy of the flatmates.com.au website they saw which stated that two furnished rooms were available for rent, and the advertisement sent by the second respondent referred to two available rooms, one with "a double bed" and the other with "a queen bed". 2. In the Ho affidavit, the first respondent relevantly stated that: 1. on or around 2 January 2020 she received a call from the appellant who explained that he was currently leasing the premises, but intended to sub-lease the studio rooms for the purpose of residential tenancy, despite it being what he called a "commercial property"; 2. annexed a letter dated 12 March 2020 that she and six other residents of the premises sent to the appellant in which she asserted that he was renting the premises as residential space and referred to "currently rented bedrooms"; 3. in addition to herself and the second to eighth respondents there were other tenants who moved into the premises but who have since moved out – four in January 2020; one in February 2020; one in March 2020; and two in April 2020. 1. In the Rhall witness statement, the second respondent relevantly stated that on 1 January 2020 she paid two weeks rent in advance of $580 and a bond of $1190 and from January 2020 a weekly rent of $290 for a studio room at the premises. 2. In the Fields witness statement, the fourth respondent relevantly stated that he stopped paying rent after 14 April 2020 and had enough bond to cover the rent until 24 May 2020. 3. On 3 September 2020, the Tribunal made decisions: 1. dismissing the RT 20/27349, RT 20/27396 and 20/27429 proceedings (the RT 20/27349, RT 20/27396 and 20/27429 decisions), being the proceedings in which the appellant claimed termination orders, and compensation from the respondents; 2. in the RT 20/22863 and RT 20/22864 proceedings by making orders for the return of the deposit paid by each of the second to eighth respondents (the RT 20/22863 and RT 20/22864 decisions). The notice of order of the Tribunal incorrectly recorded that these orders were made on 31 July 2020. 1. On 30 September 2020, the Tribunal made a decision in the RT 20/22688 proceedings by making an order for the return of the deposit paid by the first respondent (the RT 20/22688 decision). 2. In the RT 20/22688 decision, which is substantially identical to the RT 20/22863 and RT 20/22864 decisions, the Tribunal relevantly gave the following reasons: 1. the finding in the RT 20/23652 and RT 20/30275 decisions was that the 16 October 2019 agreement was a licence and not residential tenancy agreement within the meaning of the RT Act (at [8]): 2. if the appellant did not have a residential tenancy agreement with the previous owners under the 16 October 2019 agreement, he could not have sub-tenants under a residential tenancy agreement between himself and any of the first to eighth respondents. He cannot pass on a right that he does not have under the 16 October 2019 agreement (at [9]); 3. the Tribunal has no jurisdiction to hear the matters as residential tenancy agreements to which the RT Act applies (at [10]); 4. the nature of the agreements between the appellant and each of the first to eighth respondents were more akin to a boarding house agreement between a proprietor and occupants, and the Tribunal has jurisdiction for disputes under the Boarding Houses Act 2012 (NSW) (BH Act) (at [11]); 5. the premises was a "general boarding house" within the meaning of s 5(2) of the BH Act because five or more residents were provided bedrooms and/or beds for a fee or reward in the premises where the appellant as proprietor said he lived, with the facilities other than the bedrooms being shared (at [12]-[13]); 6. the Tribunal has power under s 32 of the BH Act to make an order for the payment of an amount of money (including an order for the refund or repayment of some or all of an amount paid as an occupancy fee or security deposit) (at [14]); 7. the appellant agreed on the amount of the deposits that had been paid by each of the first to eighth respondents (at [15]); 8. on 24 May 2020 the new owner had the locks changed at the premises and the occupiers were told that the appellant did not have a residential tenancy agreement for the premises (at [16]); 9. the Tribunal did not accept that the appellant was illegally locked out of the premises by the sub-tenants/occupiers, including the first respondent, acting in unison with the new owner. The 16 October 2019 agreement only ran to 6 April 2020. The appellant only had a right to provide boarding facilities to that date in the sub-agreements. The sub-agreements were only for a period of 3 months meaning they would no longer be running after 6 April 2020 (at [17]); 10. the appellant could not issue a termination notice for this premises over which he had no rights. The sub-agreements had lapsed in April 2020. The BH Act does not allow an order for termination and possession even if the appellant had control of the premises (at [18]); 11. no occupancy fees were owing between the appellant and each of the first to eighth respondents most probably from 6 April 2020 but certainly from 24 May 2020. The appellant's defence to claims for return of the deposits was based on fees owing after the new owner took possession of premises after settlement. No fees would have accrued to the appellant. If they were to be paid to anybody it would have been the new owner. The deposit paid by each of the first to eighth respondents should be returned to them (at [19]). 1. The appellant has not appealed against the RT 20/27349, RT 20/27396 and 20/27429 decisions (that is, the decisions dismissing his claims for termination orders and orders for compensation against the respondents). The appellant has appealed against the RT 20/22863 and RT 20/22864 decisions, and the RT 20/22688 decision (the decisions in which he was ordered to repay the respondents' deposits). The scope and nature of internal appeals 1. Internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel: s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). 2. The Appeal Panel relevantly may 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 permit such fresh evidence to be given in the new hearing as it considers appropriate in the circumstances: s 80(3) of the NCAT Act. 3. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, the Appeal Panel set out at [13] a non-exclusive list of questions of law which relevantly includes whether the Tribunal identified the wrong issue or asked the wrong question, and whether the Tribunal applied a wrong principle of law. 4. An error of law will also occur where the decision-maker fails to engage with and determine the case that a party seeks to make which is described as a "constructive failure to exercise jurisdiction": C G Constructions Pty Limited v Hanson Constructions Materials Pty Limited [2017] NSWCATAP 130 at [33]-[35]. 5. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Sch 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. In Collins v Urban [2014] NSWCATAP 17 (Collins), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 of the NCAT Act may have been suffered where: "… there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance." 1. In Collins, the Appeal Panel at [77], without seeking to be exhaustive in any way, stated the authorities establish that: 1. if there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" within cl 12(1)(a) of Sch 4 of the NCAT Act; 2. the decision under appeal can be said to be "against the weight of evidence" within cl 12(1)(b) of Sch 4 of the NCAT Act where the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal at first instance that it can be said that the conclusion was not one that a reasonable Tribunal member could reach. 1. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4 of the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b) of the NCAT Act. 2. In Collins, the Appeal Panel at [84] stated that ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed. 1. Rule 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) relevantly provides that in the case of an appeal from a decision arising under the BH Act or under the RT Act an internal appeal must be lodged within 14 days from the day on which the appellant was notified of the decision to be appealed. 2. In Cominos v Di Rico [2016] NSWCATAP 5 (Cominos), the Appeal Panel at [13] stated that it may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle in s 36(1) of the NCAT Act, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel proceedings 1. On 8 October 2020, the appellant commenced proceedings AP 20/39414 against the first to eighth respondents by filing a notice of appeal, in which he: 1. challenges the orders made in the RT 20/22863 and RT 20/22864 decisions, and the RT 20/22688 decision (the decisions in which he was ordered to repay the respondents' deposits); 2. lists the following grounds of appeal: "The order is being appealed as even though this tenants rent was paid up to date, the new owner Terry Younes did not charge them rent for the next four weeks which allowed them to live out the deposit they had paid me. The original lease that I signed with the previous owner was deemed to be a commercial lease and not under the residential jurisdiction of NCAT. Surely if this was true any sublease agreements would also be excluded from such jurisdiction. In Member Bassett's ruling. I believe the member made the following errors in making their orders. Section 9: 'Mr Mae did not have a residential tenancy agreement with the previous owner under the head agreement, he could not have subtenants under a residectial (sic) tenancy agreement between himself and any alleged sub tenant in this matter. He can not passs (sic) on a right that he does not have under a head agreement/ If this were the case as mentioned in... Section 10: 'The tribunal has no juristiction (sic) to hear the matters as residential agreements to which the Residential Tenancies Act 2010 applies.' Then it would equally apply that the tribunal had no right to order that I return a rental bond that it has done in section 19. It appears Member Bassett has picked and chosen which rules NCAT can and can not enforce and they have chosen to disregard any rules that would favour me and enforce any rules that would cause me financial loss. I would argue that Member Bassett has incorrectly made these orders and that if they wanted to enforce some of the parts of my sublease agreement, in this case the return of a bond fee, then they would equally need to enforce all of the parts of the sublease agreement including those that say the subtenant agrees to pay their weekly rent to me while they are still residing in the premises and give me four weeks notice if they intend to leave as per our agreement. I would equally be allowed to terminate the lease with four weeks notice if I gave this notice which I had done when I suggested the respondents live out their bonds as the new owner was giving them permission to when he changed the locks and took possession of the building. The member has also suggested that the new owner has not breached the law in changing the locks, but he is clearly not in a position to make this ruling given the matter between meyself (sic) and the new owner was dismissed on the grounds that it was not a residential matter. Section 11: Member Bassett suggests that our agreement is more akin to a Boarding House. This is incorrect. Neither I, nor any of the respondents were under the perception that I was providing them boarding accommodation. Before each tenant signed our agreement, it was mentioned that the space was officially a work space and they were officially not allowed to live there. Every respondent agreed to this. They also agreed to pay the rent on time and that they, or 1 could terminate the agreement with 4 weeks notice. In Section 16: Member Bassett has incorrectly asserted that 'The evidence showed that the new owner settled on the property at an earlier date than anticipated by Mr Mae. This is not true at all. The new owner, Terry Younes, was supposed to settle on 6th April 2020, when my 6 month lease ran out, but he didnt settle until 15th May. I also showed evidence that Mr Younes had originally agreed to allow me to continue renting the space after he completed settlement. Instead of doing this Mr Younes turned up to the property on 24th May and illegally changed the locks. He did so without any notice and against the current legislation that prevent (sic) any forced eviction, for residential or commercial buildings, during the Covid 19 Crisis. This is an ongoing civil matter and for member Bassett to have made some random ruling on this is irresponsible and inappropriate. In Section 19: Member Bassett has suggested that no occupancy fees were owed between Mr Mae and the occupiers most probably from 6 April 2020, but certainly from 24th May 2020. This is a little absurd. How can Member Bassett suggest that I not have a claim to fees when f am subleasing rooms on a building that I am still paying rent at. Or how can the new owner possibly be owed rent on a building that they have not paid for yet?! The fact that that the new owner simply changed the locks does not give them the right to automatically receive rent from subtenants that I had secured. Again Member Bassett appears to be making orders relating to a separate matter that was dismissed by NCAT. NCAT did not rule that the new owner Terry Younes had legally aquired (sic) the property, yet Member Bassett appears to suggest that if any money 'were to be paid to anybody it would have been the new owner.' Again, such statements baffle me. There is also the case of Radolph (sic) Fields. Member Bassett has made a crucial error in this matter ordering that I return Mr Fields $1,000. As my evidence and 1 believe Mr Fields own testimony suggest, Mr Feilds (sic) had already stopped paying rent live weeks before the locks were changed on the property and Mr Fields bond fee had expired seven days before the new owner changed the locks. To suggest that Mr Fields be entitled to the return of his bond fee is a clear accounting error. I repeat that if the tribunal has seen it fit to dismiss my case against the new owner as it is not a residential matter and then has dismissed my cases against the respondents based on this facts (sic), then they must equally dismiss the matter of the respondents against me. If for some reason these orders are upheld, then at the very least the one involving Randolph Fields must be removed." 1. seeks the order that each of the RT 20/22688, RT 20/22863 and RT 20/22864 proceedings should be dismissed; 2. seeks leave to appeal and provides the following details as to why the RT 20/22863 and RT 20/22864 decisions, and the RT 20/22688 decision, were not fair and equitable: "Even though the tenants rent were paid up to date, the new owner Terry Younes did not charge them rent for the next four weeks which allowed them to live out the deposit they had paid me. I should not be ordered to return their deposit as they chose to continue living in the premises as per our agreement and after the four week period entered into new agreements with the new owner. If I am forced to repay their deposits they will have lived in the proeprty (sic) for four weeks for free and are essentially double dipping." 1. seeks an extension of time to appeal and provides the following explanation as to why the notice of appeal was not lodged within the time limit: "Although the orders were made on 31 July 2020. I only recieved (sic) notice of these orders on 4th/30th September 2020. I am appealing within this time frame of two weeks." 1. On 21 October 2020, each of the first, third, sixth and seventh respondents filed a reply to appeal in which each supports the original orders made by the Tribunal, opposes leave to appeal being granted, does not accept that the appeal was lodged within time and objects to the Tribunal extending the time for the lodging of the appeal without specifying any grounds. 2. On or shortly after 22 October 2020, the fourth respondent filed his reply to appeal in which he supports the original orders made by the Tribunal, opposes leave to appeal being granted, does not accept that the appeal was lodged within time and objects to the Tribunal extending the time for the lodging of the appeal without specifying any grounds. The hearing of the appeal 1. The hearing of the appeal occurred by telephone. The appellant represented himself. The first respondent represented herself and the second to eighth respondents. 2. Neither the appellant nor the first to eighth respondents provided all the documents tendered to the Tribunal, or a transcript or sound recording of the hearing of the Tribunal. 3. The appellant relied on his written submissions. The appellant and the first to eighth respondents made oral submissions. 4. The appellant conceded that, if he was not entitled to be in possession of the premises after 24 May 2020, then he is not entitled to keep the deposits paid by the first to third and fifth to eighth respondents. 5. As the appellant in his submissions did not provide the entirety of his documents tendered to the Tribunal, and the first to eighth respondents did not provide any of their documents tendered to the Tribunal, so as to be able to properly understand the RT 20/22688, RT 20/22863 and RT 20/22864 proceedings and the RT 20/27349, RT 20/27396 and 20/27429 proceedings we have had regard to the documents tendered in those proceedings. The issues 1. A threshold issue is whether time should be extended for the appellant to lodge the appeal. 2. Having regard to the principles in Cominos, we have discerned from the orders challenged on appeal and the grounds of appeal in the notice of appeal, the material provided by the appellant, the RT 20/22863 and RT 20/22864 decisions, and the RT 20/22688 decision the following four grounds of appeal: 1. ground 1: the Tribunal erred in failing to decide the legal character of the 16 October 2019 agreement; 2. ground 2: the Tribunal erred in finding it had jurisdiction to hear and determine the application of the first to eighth respondents for the return of the deposits paid to the appellant; 3. ground 3: the Tribunal erred in finding that each of the first to eighth respondents was entitled to the return of the security deposit paid to the appellant; 4. ground 4: the Tribunal erred in finding that the fourth respondent did not owe any occupancy fees as this finding was against the weight of evidence. 1. If any of these grounds are made out, there will be an issue of whether the appeal should be dealt with by way of a new hearing. Whether time should be extended for the appellant to lodge the appeal 1. The appellant needs an extension of time to lodge the appeal against the RT 20/22863 and RT 20/22864 decisions. The appeal against the RT 20/22688 decision was filed within time. 2. Section 41 of the NCAT Act provides: 41 Extensions of time (1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation. (2) Such an application may be made even though the relevant period of time has expired. 1. In Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 (Jackson) at [21]-[22] the Appeal Panel relevantly said: [21 ] Time limits, including the specification of the time within which an appeal from an internally appealable decision to the Appeal Panel of the Tribunal must be lodged, are established by legislation for the purpose of promoting the orderly and efficient conduct of proceedings in the Tribunal, providing certainty for the parties to proceedings, especially the party in whose favour orders have been made, and achieving finality in litigation. For these reasons, these time limits should generally be strictly enforced. That is not to say, however, that exceptions should not be made where the interests of justice so require. The express power in s 41 of the Act to grant extensions of time allows the Tribunal to prevent the rigid enforcement of time limits becoming an instrument of injustice. …. [22] The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include: (1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - ….; (2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - … and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - …; (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal), …; and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - …" (citations omitted) 1. We have decided time should be extended to 8 October 2020 for the appellant to lodge the appeal against the RT 20/22863 and RT 20/22864 decisions as the length of the delay of 24 days was not excessive, there is no evidence of any prejudice to any of the second to eighth respondents, and strict compliance with r 25(4)(b) of the NCAT Rules would work an injustice upon the appellant. Ground 1: the Tribunal erred in failing to decide the legal character of the 16 October 2019 agreement 1. We have identified as a ground of appeal the issue of whether the Tribunal erred in failing to decide the legal character of the 16 October 2019 agreement. We are satisfied that ground 1 raises a question of law as to whether the Tribunal erred in constructively failing to exercise its jurisdiction by not making a finding on a material question. 2. The Tribunal incorrectly assumed and adopted for the purpose of the RT 20/22863 and RT 20/22864 decisions and the RT 20/22688 decision that the differently constituted Tribunal in the RT 20/23652 and RT 20/30275 decisions had made a finding that the 16 October 2019 agreement was a licence. In fact, the Tribunal in the RT 20/23652 and RT 20/30275 decisions found that that the 16 October 2019 agreement was not residential tenancy agreement within the meaning of the RT Act, and otherwise made no finding as to its legal character. 3. An issue before the Tribunal was the legal character of the 16 October 2019 agreement. As will be seen below, the answer to this question was an essential step in determining whether the Tribunal has jurisdiction to hear and determine disputes arising in relation to the sub-leases. This constructive failure to exercise its jurisdiction constituted an error of law. Accordingly, we find that ground 1 is made out. Ground 2: the Tribunal erred in finding it had jurisdiction to hear and determine the application of the first to eighth respondents for the return of the deposits paid to the appellant 1. The appellant submits that if the Tribunal does not have jurisdiction to hear and determine disputes arising in relation to the 16 October 2019 agreement under its "residential jurisdiction", then the Tribunal does not have jurisdiction to hear and determine disputes arising in relation to the sub-leases. We are satisfied that ground 2 raises a question of law as to whether the Tribunal erred in finding it had jurisdiction to hear and determine the applications of each of the first to eighth respondents under the BH Act. 2. In making this submission the appellant appears to assume that the Tribunal made a finding in the RT 20/23652 and RT 20/30275 decision that the 16 October 2019 agreement was a commercial lease, and that this decision was binding on the parties in the RT 20/22688, RT 20/22863 and RT 20/22864 proceedings. 3. Each of the two limbs of the appellant's submission is based upon a false premise. As to the first limb, as we have found above, the Tribunal did not make a finding in the RT 20/23652 and RT 20/30275 decision that the 16 October 2019 agreement was a commercial lease. 4. As to the second limb, it is based on a misapplication of the principle of issue estoppel. 5. In Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 at 531-532, Dixon J explained the principle of issue estoppel in the following terms: "A judicial determination directly involving an issue of fact or of law disposes once and for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgement, decree or order necessarily established as the legal foundation or justification of its conclusion. … Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established." 1. The Appeal Panel has determined that the principle of issue estoppel applies in the Tribunal: Pearson v Clark [2016] NSWCATAP 134 at [68], [74]. 2. Even if the Tribunal had made a finding in the RT 20/23652 and RT 20/30275 decision that the 16 October 2019 agreement was a commercial lease, it would not bind the parties in the RT 20/22688, RT 20/22863 and RT 20/22864 proceedings because they were not the same parties as in the RT 20/23652 and RT 20/30275 proceedings. 3. However, while the appellant did not correctly identify the error made by the Tribunal in deciding it had jurisdiction, we are satisfied that the Tribunal failed to ask the correct question in deciding it had jurisdiction. 4. The BH Act relevantly provides: 1. definitions of "boarding premises", "premises", "proprietor" and "registrable boarding house" in s 4(1): 4 Definitions (1) In this Act: … boarding premises means premises (or a complex of premises) that: (a) are wholly or partly a boarding house, rooming or common lodgings house, hostel or let in lodgings, and (b) provide boarders or lodgers with a principal place of residence, and (c) may have shared facilities (such as a communal living room, bathroom, kitchen or laundry) or services that are provided to boarders or lodgers by or on behalf of the proprietor, or both, and (d) have rooms (some or all of which may have private kitchen and bathroom facilities) that accommodate one or more boarders or lodgers. … premises includes: (a) a building or structure, or … proprietor, in relation to premises, means: (a) in the case of premises that are leased—a tenant or sub-tenant who is entitled to immediate possession of the premises, or (b) in any other case—an owner of the premises. registrable boarding house—see section 5. 1. a definition of "registrable boarding house" in s 5: 5 Meaning of "registrable boarding house" (1) For the purposes of this Act, a registrable boarding house means any of the following: (a) a general boarding house, … (2) Boarding premises are a general boarding house if the premises provide beds, for a fee or reward, for use by 5 or more residents (not counting any residents who are proprietors or managers of the premises or relatives of the proprietors or managers). 1. for the interpretation of "occupancy agreement", "occupancy fee", "occupancy principles" and "rental agreement" in s 27(1): 27 Interpretation (1) In this Part and Schedule 1: … occupancy agreement, in relation to a registrable boarding house, means a written or unwritten agreement: (a) that is between a proprietor of the boarding house (or a person acting on behalf of the proprietor) and a resident of the house (or a person acting as an authorised representative of the resident), and (b) under which the resident is granted the right to occupy, for a fee or reward, one or more rooms in the boarding house as a resident of the house, but does not include a rental agreement between a proprietor and resident of a registrable boarding house (or any persons acting on their behalf). occupancy fee means an amount payable by or for a resident of a registrable boarding house for the right to occupy one or more rooms in the boarding house as a resident of the house during the term of an occupancy agreement. occupancy principles—see section 30. rental agreement means: (a) a residential tenancy agreement within the meaning of the Residential Tenancies Act 2010, or (b) a lease to which the Landlord and Tenant (Amendment) Act 1948 applies. 1. for "occupancy principles" in s 30: 30 Occupancy principles (1) The occupancy principles in relation to registrable boarding houses are the principles set out in Schedule 1. (2) The occupancy principles apply for the purposes of this Division only in relation to residents of registrable boarding houses under occupancy agreements. 1. for the application of occupancy principles in s 31: 31 Application of occupancy principles (1) The occupancy principles apply as follows in relation to a registrable boarding house: (a) a resident must be provided with accommodation in compliance with the occupancy principles, … (d) the proprietor must exercise the proprietor's rights or powers under the occupancy agreement (including in relation to the collection, payment, retention and repayment of money) subject to any requirements of the occupancy principles. … (3) This section is taken to be a term of every occupancy agreement (whether entered into before or after the commencement of this section), but only on and from the day that is 3 months after the commencement of this section. (4) Any term of an occupancy agreement or another agreement is void to the extent to which it is inconsistent with the provisions of this section. 1. for the resolution of an occupancy principles dispute in s 32: 32 Applications to Civil and Administrative Tribunal for dispute resolution (1) A relevant party may apply to the Civil and Administrative Tribunal for the resolution of an occupancy principles dispute. (2) A relevant party is: (a) a resident or former resident of a registrable boarding house (or an authorised representative of the resident or former resident), or (b) a proprietor or former proprietor of a registrable boarding house. (3) An occupancy principles dispute is a dispute between relevant parties about the application of the occupancy principles in relation to a resident or former resident of a registrable boarding house. (4) The Tribunal may, on application under this section, make one or more of the following orders: … (c) an order for the payment of an amount of money (including an order for the refund or repayment of some or all of an amount paid as an occupancy fee or security deposit), 1. for occupancy principles in Sch 1 including "payment of security deposits": Schedule 1 Occupancy principles … 8 Payment of security deposits (1) The proprietor may require and receive a security deposit from the resident or the resident's authorised representative only if: (a) the amount of the deposit does not exceed 2 weeks of occupancy fee under the occupancy agreement, and (b) the amount is payable on or after the day on which the resident (or the resident's authorised representative) enters the agreement. (2) Within 14 days after the end of the occupancy agreement, the proprietor must repay to the resident (or the resident's authorised representative) the amount of the security deposit less the amount necessary to cover the following: (a) the reasonable cost of repairs to, or the restoration of, the registrable boarding house or goods within the premises of the boarding house, as a result of damage (other than fair wear and tear) caused by the resident or an invitee of the resident, (b) any occupation fees or other charges owing and payable under the occupancy agreement or this Act, (c) the reasonable cost of cleaning any part of the premises occupied by the resident not left reasonably clean by the resident, having regard to the condition of that part of the premises at the commencement of the occupancy, (d) the reasonable cost of replacing locks or other security devices altered, removed or added by the resident without the consent of the proprietor, (e) any other amounts prescribed by the regulations. (3) The proprietor may retain the whole of the security deposit after the end of the occupancy agreement if the costs, fees or charges referred to in subclause (2) (a)–(e) are equal to, or exceed, the amount of the security deposit. (4) In this clause: security deposit means an amount of money (however described) paid or payable by the resident of a registrable boarding house or another person as security against: (a) any failure by the resident to comply with the terms of an occupancy agreement, or (b) any damage to the boarding house caused by the resident or an invitee of the resident, or (c) any other matter or thing prescribed by the regulations. 1. As set out in s 32(1), when read with s 32(2) and (3) of the BH Act, the Tribunal has jurisdiction to hear and determine an occupancy principles dispute between relevant parties about the application of the occupancy principles in relation to a resident or former resident of a registrable boarding house. The Tribunal did not consider whether there was such a dispute, but determined it had jurisdiction because it characterised the sub-leases as "akin to a boarding house agreement between a proprietor and occupants". There is no such concept as a boarding house agreement in the BH Act. Even if a boarding house agreement is properly to be equated with an occupancy agreement within the BH Act, the existence of an occupancy agreement in itself does not confer jurisdiction upon the Tribunal. In so finding that it had jurisdiction on this basis, the Tribunal made an error of law. Accordingly, we find that ground 2 is made out, although on a different basis from that contended by the appellant. Ground 3: the Tribunal erred in finding that each of the first to eighth respondents was entitled to the return of the security deposit paid to the appellant 1. The appellant contends that each of the first to eighth respondents was not entitled to the return of the security deposit paid to the appellant because Mr Younes did not charge them rent for the four weeks after 24 May 2020. In so far as the appellant contends that this part of the RT 20/27349, RT 20/27396 and 20/27429 decisions is not fair and equitable, it will be necessary for the appellant to obtain leave to appeal. 2. As will be seen below, this ground of appeal depends on whether the Tribunal has jurisdiction to hear and determine disputes arising in relation the sub-leases. As we have found that ground 2 is made out, it is unnecessary to consider ground 3. Ground 4: the Tribunal erred in finding that the fourth respondent did not owe any occupancy fees as this finding was against the weight of evidence 1. The appellant contends that the finding of the Tribunal that the fourth respondent did not owe any occupancy fees was against the weight of evidence. 2. As the Tribunal dismissed the RT 20/27396 proceedings and the appellant has not appealed against the RT 20/27396 decision so far as it relates to the finding that there were no occupancy fees owing by the fourth respondent, ground 4 does not arise for determination in this appeal. Whether the appeal should be dealt with by way of a new hearing Introduction 1. We have decided to deal with the appeal by way of a new hearing as we consider the issues raised in grounds 1 to 3 warrant a new hearing. 2. None of the parties sought to admit fresh evidence on the rehearing. The evidence necessary to undertake the new hearing has been given in the RT 20/22688, RT 20/22863, RT 20/22864, RT 20/27349, RT 20/27396 and 20/27429 proceedings. The application of the guiding principle of the "just, quick and cheap resolution of the real issues in the proceedings" suggests that the parties should not be given an opportunity to re-run their case on appeal: NCAT Act, s 36(1). The principles applicable to a new hearing 1. In undertaking a new hearing we have applied by way of analogy the principles applied by courts in an appeal by way of rehearing which have been summarised by Kirby J in CSR Ltd v Maddalena [2006] HCA 1; (2006) 224 ALR 1 at [16]-[17] (Gleeson CJ at [1] agreeing). These principles relevantly require the appellate court to conduct a thorough examination of the record and a real rehearing. The appeal is not confined to reconsideration of the record in order to correct errors of law, although that will certainly be encompassed in such an appeal. An appellate court, on such an appeal, is also required to consider suggested errors of fact-finding. This involves, where there is no jury, conducting a thorough review of the primary judge's reasons and engaging in the tasks of "weighing conflicting evidence and drawing … inferences and conclusions". The issues arising on the new hearing 1. In undertaking the new hearing the following issues arise for determination: 1. what was the legal character of the 16 October 2019 agreement; 2. what was the legal character of the sub-leases; 3. whether the Tribunal had jurisdiction to hear and determine the application of the first to eighth respondents for the return of the deposits or bonds paid to the appellant; 4. whether each of the first to eighth respondents was entitled to the return of the deposits or bonds paid to the appellant. What was the legal character of the 16 October 2019 agreement? 1. In the RT 20/23652 and RT 20/30275 proceedings the appellant submitted that the 16 October 2019 agreement was a residential tenancy agreement within the meaning of the RT Act, while Mr Younes submitted that this agreement was a licence. 2. It appears that the parties made no submissions about the legal character of the 16 October 2019 agreement in the RT 20/22688, RT 20/22863 and RT 20/22864 proceedings. 3. In Swan v Uecker [2016] VSC 313; (2016) 50 VR 74 at [31]-[37] and [67] Croft J set out and discussed the leading authorities that have considered whether an agreement to occupy premises is a lease or a licence. From this discussion the following legal principles can be distilled: 1. as a matter of law, the test to be applied to distinguish between a lease and a licence is whether or not what is granted is exclusive possession; 2. exclusive possession involves that the lessee have the general right to exclude others, including the lessor, from the premises, subject to such specific provisions for entry as may be particularly provided for in the document; 3. there are cases in which it is not clear from the terms of the grant, construed in the light of the whole agreement and its context, what it is that is being granted by them. In deciding, in such cases, whether what has been granted is the right to exclusive possession, the court, in the process of construction, has in practice looked, inter alia, to two things: the nature of the rights which, in terms, have been granted; and the intention of the parties; 4. party intention in this context is to be determined objectively on the basis of the terms of the particular agreement under consideration and having regard to surrounding circumstances to the extent that is permissible according to the ordinary rules of construction; 5. legal relationships to which the grant of exclusive possession might be referable and which would or might negative the grant of an estate or interest in the land include occupancy under a contract for the sale of the land, occupancy pursuant to a contract of employment or occupancy referable to the holding of an office; 6. the description of the agreement as a lease or a licence is not determinative; 7. at common law a landlord has the ability to make an overstaying tenant leave the property in the same way as a licensor can evict an overstaying licensee. Consequently, at common law a person's ability to make an overstaying guest leave does not tend in favour or against a finding of exclusive possession prior to that entitlement arising — the commencement of the overstaying period. 1. The RT Act relevantly provides: 1. definitions of "landlord", "residential premises" and "tenant" in s 3(1): 3 Definitions (1) In this Act— … landlord means— (a) the person who grants the right to occupy residential premises under a residential tenancy agreement, or … residential premises means any premises or part of premises (including any land occupied with the premises) used or intended to be used as a residence. … tenant means— (a) the person who has the right to occupy residential premises under a residential tenancy agreement, or 1. a definition of a residential tenancy agreement in s 13: 13 Agreements that are residential tenancy agreements (1) A residential tenancy agreement is an agreement under which a person grants to another person for value a right of occupation of residential premises for the purpose of use as a residence. (2) A residential tenancy agreement may be express or implied and may be oral or in writing, or partly oral and partly in writing. (3) An agreement may be a residential tenancy agreement for the purposes of this Act even though— (a) it does not grant a right of exclusive occupation, or (b) it grants the right to occupy residential premises together with the letting of goods or the provision of services or facilities. 1. It is not clear from the terms of the 16 October 2019 agreement what right of occupation was being granted by the previous owners to the appellant. The description of the previous owners as "Licensor" and the appellant as "Licensee" and the use of the words and expressions "rent", "rental amount", "payment of rent" and "the rental of the property" are equivocal. An important indication of the nature of the right of occupation was the character of the premises as "a commercial warehouse space". This characterisation suggests, as a matter of common-sense, that the appellant could have made use of the premises only if he had the exclusive right to use them as a warehouse. There is no circumstance which would or might negative the grant of an estate or interest in the land on which the premises are located such as the appellant having no right to exclude others during its term. 2. Having regard to these considerations, we are satisfied that the 16 October 2019 agreement on its proper construction was a lease rather than a licence. 3. We are also satisfied that the 16 October 2019 agreement on its proper construction was not a residential tenancy agreement within the meaning of the RT Act because there was nothing in its terms or the surrounding circumstances that indicates as at the time it was entered into it was used or intended to be used as a residence. On the contrary, the appellant's description of the premises was "a commercial warehouse space". What was the legal character of the sub-leases? 1. In submitting that the Tribunal does not have jurisdiction to hear and determine disputes arising in relation the sub-leases, the appellant's implicit submission is that each of the sub-leases was a commercial agreement and not a residential tenancy agreement within the RT Act nor an occupancy agreement within the BH Act. We note that in the RT 20/22688, RT 20/22863, RT 20/22864, RT 20/27349, RT 20/27396 and 20/27429 proceedings the appellant had submitted that the sub-leases were residential tenancy agreements. 2. It is convenient, first, to consider the appellant's submission that each of the sub-leases was a commercial agreement. In doing so, it is necessary to consider the principles relating to sham contracts. 3. In Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55, (2004) 218 CLR 471 at [46] the High Court said ''sham'' is an expression which has a well-understood legal meaning. It refers to steps which take the form of a legally effective transaction but which the parties intend should not have the apparent, or any, legal consequences. 4. In Raftland Pty Ltd v Federal Commissioner of Taxation [2008] HCA 21, 238 CLR 516 at [137]-[152] Kirby J analysed the authorities relating to sham transactions. The following principles can be distilled from this analysis: 1. where it is legally warranted, sham analysis affords the court a ground for ignoring, instead of merely construing, the primary documentary material in determining the rights and obligations of the parties; 2. the key to a finding of sham is the demonstration, by evidence or available inference, of a disparity between the transaction evidenced in the documentation (and related conduct of the parties) and the reality disclosed elsewhere in the evidence. Where the evidence shows a discordance between the parties' legal rights or obligations as described in the documents and the actual intentions which those parties are shown to have had as to their legal rights and obligations, a conclusion of sham will be warranted; 3. the test as to the parties' intentions is subjective. In essence, the parties must have intended to create rights and obligations different from those described in their documents. Such documents must have been intended to mislead third parties in respect of such rights and obligations; 4. where a court is considering a suggestion of sham that has a reasonably arguable evidential foundation, the court will not be confined to examining the propounded documentation alone. It may examine (and draw inferences from) other evidence, including the parties' explanations (if any) as to their dealings, and evidence describing their subsequent conduct; 5. a departure by the parties from the terms of their original agreement does not necessarily indicate that they never intended that agreement to be effective and binding according to its tenor. 1. The Jimenez sub-lease, the Cruz sub-lease and the Chang sub-lease each included the term that "This studio is leased strictly as a work space and the tenant agrees that they shall not reside in the premises". While the other sub-leases included no such written term, it is possible that they were partly written and partly oral agreements and included as an oral term to the same effect arising out of the evidence of the appellant. It is not necessary to make a finding as to whether the other sub-leases included such a term. 2. We are satisfied this term included in the Jimenez sub-lease, the Cruz sub-lease and the Chang sub-lease and any such term in the other sub-leases is to be ignored as a sham for the following reasons: 1. it was intended by the parties from their commencement that the studios would be occupied as a residence in view of the content of the advertisement on the flatmates.com.au website which was seen by each of the first to eighth respondents; 2. the studios were in fact occupied as a residence by each of the first to eighth respondents, to the appellant's knowledge. 1. Once this term included in the Jimenez sub-lease, the Cruz sub-lease and the Chang sub-lease and any such term in the other sub-leases is ignored as a sham, then each of the sub-leases is to be properly characterised as an agreement under which each respondent is granted the right to occupy, for a fee or reward, a studio and common areas as a resident of the premises. 2. The next question is whether the sub-leases were residential tenancy agreements to which the RT Act applied. It will be recalled that the Tribunal concluded that the sub-leases were agreements to which the BH Act applied. The BH Act would not apply, if the RT Act applied, for the following reasons. 3. The BH Act confers jurisdiction on the Tribunal to resolve an "occupancy principles dispute," on the application of a "relevant party" (s 32(1)). A "relevant party" includes a resident or former resident of a registrable boarding house and a proprietor or former proprietor of a registrable boarding house (s 32(2)). An "occupancy principles dispute" is "a dispute between relevant parties about the application of the occupancy principles in relation to a resident or former resident of a registrable boarding house" (s 32(3)). A reference in s 32 of the BH to "occupancy principles" is "a reference to those principles as they apply under [Part 3 of the BH Act] in relation to residents of registrable boarding houses under occupancy agreements" (s 32(6)). It follows that the Tribunal's jurisdiction to make orders under the BH Act depends upon the existence of an "occupancy agreement" between the parties. 4. Assuming for the time being that the premises met the definition of a "registrable boarding house," a "rental agreement between a proprietor and resident of a registrable boarding house" is expressly excluded from the definition of an "occupancy agreement" (BH Act, s 27(1)). A "rental agreement" is "a residential tenancy agreement within the meaning of the" RT Act (BH Act, s 27(1)). That is, an occupancy agreement under the BH does not include a residential tenancy agreement under the RT Act. It is therefore necessary to consider whether each sub-lease was a residential tenancy agreement before considering whether each sub-lease was an occupancy agreement. 5. The premises the subject of each sub-lease met the description of "residential premises" within s 3(1) of the RT Act, being "used or intended to be used as a residence." Section 7 of the RT Act provides that the RT Act does not apply to certain categories of premises. None of those categories is applicable to the premises the subject of the sub-leases. 6. We incline to the view that each sub-lease was a "residential tenancy agreement" within s 13 of the RT Act because each was "an agreement under which a person" - the appellant - "grants to another person" – each respondent – "for value a right of occupation of residential premises for the purpose of use as a residence." The sub-leases granted the right of exclusive occupation of each studio, but not of the common areas, and provided for the sharing of facilities. As provided in s 13(3) of the RT Act, a residential tenancy agreement does not require the grant of a right of exclusive occupation and may grant the right to occupy residential premises together with the provision of services or facilities. There is no suggestion that the agreement was one to which the RT Act does not apply, by operation of s 8(1) of the RT Act. 7. None of the exemptions from the Act apply (see RT Act, s 12(1), Residential Tenancies Regulation 2019 (NSW) (RT Regulation), Part 4). 8. For these reasons, there is a basis for concluding that each of the sub-leases had the legal character of a residential tenancy agreement within the RT Act. However, we note that the evidence in the RT 20/22688, RT 20/22863, RT 20/22864, RT 20/27349, RT 20/27396 and 20/27429 proceedings as to the legal character of the sub-leases was limited. Further, neither of the parties addressed submissions as to this issue. For reasons which follow, we do not need to reach a concluded view about this issue. 9. If the sub-leases were not residential tenancy agreements, we consider that each of the sub-leases was properly to be characterised as an occupancy agreement within the BH Act. On the assumption that the sub-leases were not residential tenancy agreements, we would reach the following conclusions: 1. the premises had the character of boarding premises as defined in s 4(1) of the BH Act because it had all four characteristics referred to in that definition. This character of the premises can be inferred from the placement and nature of the advertisements on the flatmates.com.au website, the circumstance that the respondents all had a principal place of residence there, the layout of rooms at the premises, the presence of shared facilities provided on behalf of the appellant and the number of persons entering and leaving the premises as residents that is consistent with the use of the premises as a general boarding house; 2. the premises met the description of a general boarding house and a registrable boarding house within s 5(1)(a) when read with s 5(2) of the BH Act because it provided beds, for a fee or reward, for use by five or more residents; 3. it satisfied both limbs of the definition of occupancy agreement in s 27(1) of the BH Act. 1. As to the first limb of the definition of occupancy agreement, being, relevantly, an agreement between a proprietor of the boarding house and a resident of the house, each of the sub-leases was between the proprietor of the boarding house and a resident of the house. The appellant was the proprietor of the boarding house within para (a) of the definition in s 4(1) of the BH Act because he was a tenant who was entitled to immediate possession of the premises under the 16 October 2019 agreement. 2. The second limb of the definition of occupancy agreement, being an agreement under which the resident is granted the right to occupy, for a fee or reward, one or more rooms in the boarding house as a resident of the house, also applied. 3. It follows that if each sub-lease was not a "rental agreement" (as that term is defined in s 27 of the BH Act), it was an "occupancy agreement" within that Act. 4. We have found that it is unnecessary to determine whether each of the sub-leases is a residential tenancy agreement within the RT Act or an occupancy agreement within the BH Act, because on either basis the respondents are entitled to the return of their rental bond or their security deposit. Whether the Tribunal had jurisdiction to hear and determine the application of the first to eighth respondents for the return of the bonds or deposits paid to the appellant 1. We are satisfied that the Tribunal had jurisdiction to hear and determine the application of the first to eighth respondents for the return of the bonds or deposits paid to the appellant whether each sub-lease is properly to be characterised as a residential tenancy agreement within the RT Act or an occupancy agreement within the BH Act. 2. If the sub-leases are properly to be characterised as residential tenancy agreements within the RT Act, then the Tribunal has jurisdiction under s 175(1) of the RT Act for the following reasons: 1. each of the first to eighth respondents was the tenant within para (a) of the definition in s 3(1) of the RT Act; 2. the appellant was the landlord within para (a) of the definition in s 3(1) of the RT Act; 3. the bond was rental bond within s 157 of the RT Act by reason of being an amount of money paid by the tenant as security against any failure by a tenant to comply with the terms of a residential tenancy agreement; 4. the application was brought by the respondent within the period specified in s 175(3) of the RT Act when read with cl 39(8) of the RT Regulation. 1. If the sub-leases are properly to be characterised as occupancy agreements within the BH Act, then the Tribunal has jurisdiction under s 32 of the BH Act for the following reasons: 1. there was an occupancy principles dispute within s 32(1) when read with s 32(3) of the BH Act because the dispute concerned the occupancy principle in cl 8 of Sch 1 relating to the payment of security deposits; 2. each of the first to eighth respondents was a former resident of a registrable boarding house within s 32(2)(a) of the BH Act; 3. the appellant was the former proprietor of a registrable boarding house within s 32(2)(b) having regard to para (a) of the definition of "proprietor" in s 4(1) of the BH Act. Whether each of the first to eighth respondents for the return of the bonds paid to the appellant 1. We are satisfied that each of the sub-leases whether they were a residential tenancy agreement or an occupancy agreement came to an end on 24 May 2020 when the appellant was evicted from the premises by the physical re-entry of the new owner by its representative Mr Younes changing the locks. There was no legislation in force in response to the COVID-19 pandemic which prevented the new owner from re-entering the premises. From that time the appellant was no longer granting a right to occupy a studio in the premises to each of the first to eighth respondents and accordingly had no right to charge any rent or occupancy fee. 2. If each sub-lease was an occupancy agreement, then by reason of the operation of cl 8(2) of Sch 1 of the BH Act the appellant was required to return the security deposit within 14 days of 24 May 2020. While each of the first to eighth respondents was not entitled to the return of their security deposit on 25 May 2020, on the commencement of the RT 20/22688, RT 20/22863 and RT 20/22864 proceedings, they each became entitled to its return on 7 June 2020. 3. The appellant has no defence to the claim of each of the first to eighth respondents to the return of their bond or security deposit. Whatever arrangement may have been made between Mr Younes and any of the first to eighth respondents did not entitle the appellant to retain the bond or security deposit. The notice period of four weeks in the sub-leases for vacation of the studio by each of the first to eighth respondents was irrelevant because as from 24 May 2020 the appellant had no right to charge any rent or occupancy fee. Orders 1. 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. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 January 2021