Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Griffin v Wong [2014] NSWCATCD 35 Hearing dates: 13 November 2013 Decision date: 01 April 2014 Jurisdiction: Consumer and Commercial Division Before: G Meadows, Senior Member Decision: The following orders are made: Applications RT 13/46431 and RT 13/51000 are transferred to the General List. Applications RT 13/46431 and RT 13/51000 are to be listed together for directions at the earliest available date for 45 minutes. Catchwords: Tenancy Legislation Cited: Residential Tenancies Act 2010 Category: Principal judgment Parties: Michael Anthony Griffin (applicant) Albert Wong (respondent) File Number(s): RT 13/46431 and RT 13/51000 reasons for decisioN Applications 1RT 13/46431, the first application in time, was filed on 30 August 2013, seeking the following orders: (1)"Section 11: an order that the agreement between the applicant and respondent is a tenancy agreement under the Act on the basis that the applicant is a tenant; (2)Section 44(1)(a): an order that the rent increase sought by the respondent is excessive; (3)Section 44(1)(b): an order that the rent is to be reduced due to the reduction of services being the loss of a property manager and maintenance and rubbish removal services at the premises; (4)Section 45: an order that the rent is to be reduced due to the premises being unusable, uninhabitable or destroyed; (5)Section 47(5): an order that the rent increase paid from 28 August 2012 is to be repaid to the applicant as the increase was excess to the requirements of the tenancy and not permitted by law being obtained as an increase due to the introduction of the carbon tax; (6)Section 65(1)(a): an order that the landlord carry out repairs to the carpet on the stairs and remove all rubbish obstructing egress of the premises; (7)Section 65(5): an order that the rent payable by the applicant is to be paid into the Tribunal until the repairs and maintenance ordered are carried out; and (8)Section 175: an order that the landlord pay the bond of $240.00 paid to him by the applicant in July 2010 to NSW Fair Trading and that the landlord provide the applicant with a Rental Bond Number." 2Application RT 13/51000 was filed on 30 September 2013 and sought the following orders: (1)"Section 115(2): an order that the eviction notice dated 8 September 2013 and served on the applicant by the respondent is retaliatory; and (2)Section 115(1): an order for compensation." 3Both matters were heard together on 13 November 2013 but prior to that point had been listed separately. In order to clarify the position, I provide the following summary of each matter separately before setting out my decision on the preliminary issue. RT 13/46431 4This matter was listed for a conciliated hearing on 20 September 2013 before Member Marzilli. It appears that on that occasion the applicant sought to amend the application to include the following orders: (1)"a declaration that the eviction notice served on the applicant on 15 September 2013 is a retaliatory notice pursuant to s 115 RTA and is invalid and unenforceable; (2)an order that the landlord respondent give the applicant a key to the new locks that have been fitted by the landlord and that the respondent allow the applicant unrestricted access to the premises until determination of these proceedings subject to the applicant paying rent on the usual basis; and (3)Any other order the Tribunal sees fit including but not limited to: (a)the respondent to repay the applicant the amount of $185.00 for the accommodation he has paid for since the retaliatory eviction." 5It appears from the Tribunal file that the applicant filed lengthy written submissions which were accompanied by another set of amended orders, in the same terms as those just listed but with one additional order: (4)"In the alternative to the above [being the orders just listed in paragraph 4], that the orders sought above be made pursuant to s 32(4) Boarding Houses Act 2012 (BHA) as breaches of the occupancy principles as Schedule 1 of the BHA." 6It also appears from the Tribunal file that the parties may have initially agreed that the matter was properly brought pursuant to the Boarding Houses Act 2012 ("BHA") although that note was crossed out. In any case, Member Marzilli ordered, inter alia, that the matter be listed for hearing and that the parties were given a timetable for the service of evidence. In addition, Member Marzilli noted that the following additional orders were sought: (1)"that the respondent grant the applicant access to the premises and keys to the changed locks; and (2)compensation for alternate accommodation while he has been excluded from the premises by the respondent." Member Marzilli also noted that the Tribunal could not amend the application to seek an order that the termination notice was retaliatory as that notice was served after the date of this application. 7On 23 September 2013, the applicant sent an email to the Tribunal Registry noting that he had not been able to open the attachment to an email forwarded to him by the Registry on 20 September 2013, being the orders made by Member Marzilli. The applicant stated in the email that he needed urgent access to the premises because the respondent had removed certain property of his. The applicant also noted that he was considering having the matter shifted to the General Division as that Division could hear the [substantive] matter if it was decided it was a boarding house, rather than a residential tenancy, matter. 8On 23 September 2013, at 5:10 pm, the applicant sent another email to the Tribunal Registry as follows: "I am the applicant in RT 13/46431. I need the following urgent orders: (1)that the matter be transferred to the General Division as if the RT determines the agreement not to be a residential agreement then it will not have jurisdiction to hear the rest of the application. However, even if the General Division determines that the agreement is not a residential agreement but an occupancy agreement then it would still be able to hear the matter pursuant to the Boarding House Act 2012. (2)That the respondent landlord desist in entering the applicants residence at 9/34 Stanmore Rd Stanmore NSW and removing property from the premises. I saw the respondent enter unit 9 and remove property of the applicant at approximately 9:30 am this morning in the form of: (a)bedding belonging to the applicant; and, (b)tax records and receipts of the applicant that the applicant kept in a plastic bag in his wardrobe that are required as evidence to resolve an issue in dispute in these proceedings." 9The respondent wrote to the Registry by email on 25 September 2013 seeking an extension of time in which to file his evidence because of illness. It appears that request was dealt with by way of orders made on matter RT 13/51000 on 2 October 2013 (see below). However, this application was not itself listed on that date. The applicant requested a summons be issued on "Alison Cook" to give evidence at the Tribunal. A copy of the summons had been forwarded to the applicant by letter dated 4 October 2013, noting that the matter was listed for hearing on 13 November 2013. Meanwhile, the applicant had issued a second summons, this time to provide certain documents, on the respondent, Mr Wong. This summons was set down for a Return of Summons Hearing on 23 October 2013. (At the request of the applicant, this summons was later amended to correct errors in certain dates.) 10The applicant wrote to the Registry on 29 September 2013 (received the day following) raising a number of issues with the matter. By letter dated 9 October 2013 he was advised by the Registry that the matters raised should be dealt with by the Tribunal at the hearing on 13 November 2013. He was also advised to seek independent legal advice in relation to the issues raised, including specifically further amendment of the application. 11On 11 October 2013, the applicant requested a further summons to give evidence to be issued on "Allan Ritchie" and a further summons to produce certain documents to be issued on the respondent containing a lengthy list of categories of documents to be provided, including a computer and numerous telephone records and other material relating to issues or items included in the respondent's evidence filed in the Tribunal as previously ordered. 12On 23 October 2013 the matter was heard for return of summons before Deputy Registrar House. Perhaps not surprisingly, the respondent objected to the form of the second summons served on him to produce documents. Indeed, on 22 October 2013, the respondent sent an email to the Registry stating that he would not produce documents and he had not be given "expenses" funds by the applicant and announced he would not produce documents and would not be appearing at the hearing the following day. Notwithstanding that email, both parties appeared the following day before Deputy Registrar House. Orders were made in relation to the respondent providing written objections to the summonses served on him, including details of his reasonable expenses of complying, and in relation to the applicant providing a written response to the respondent's written objections. This exchange of documents was to be completed by 08 November 2013. The return of summonses, meanwhile, was adjourned to the hearing date, 13 November 2013. 13Also on 23 October 2013, Deputy Registrar House noted that the respondent had provided written submissions in relation to both matters, copies of which were placed on each file. 14On 26 October 2013, the applicant wrote to the Registrar (received 28 October 2013) in relation to two issues: (1)"a request that Member Peter Smith not hear the preliminary issue or the substantive hearing on the ground of an apprehension that the Member was biased [see below in relation to RT 13/51000]; and (2)a lengthy submission in relation to the transfer of the applications to the General Division in the event that it was determined that the applicant was a boarder, not a tenant, with submissions in relation to the service and use of evidence already served and whether the respondent had been accorded procedural fairness." The applicant was advised in writing by the Registry that these issues should be raised at the next hearing. 15On 6 November 2013 the respondent filed his objections to the summonses referred to in paragraph 12 above. On 8 November 2013, in response to a request from the applicant to peruse the Tribunal file so as to obtain the respondent's objections to summonses, the objections were posted to the applicant. 16On 13 November 2013 the preliminary issue as to jurisdiction was heard in this matter and in RT 13/51000. RT 13/51000 17As noted previously, this application was filed on 30 September 2013, seeking orders in relation to the termination notice issued by the respondent on the applicant soon after RT 13/46431 had been filed. The matter was listed for a conciliated hearing before Member Peter Smith on 2 October 2013. The notes on the Tribunal file make clear that the preliminary jurisdictional issue was raised. Member Smith made orders that RT 13/51000 was to be listed for hearing together with RT 13/46431 on 13 November 2013, that the parties were to file and serve submissions on jurisdiction prior to that date and that order 3 made on 20 September 2013 on RT 13/46431 (for the service of evidence by the respondent) was extended to 9 October 2013. 18On 7 November 2013, the applicant wrote two letters to the Registry (received 8 November 2013) as follows: (1)attaching submissions in compliance with the orders of Deputy Registrar House on 23 October 2013 (see above); (2)advising that he had been advised that Ms Alison Cook (on whom the summons to attend and give evidence, referred to in paragraph 9 above, would not be attending to give evidence and seeking a further summons be issued and if necessary a warrant for the apprehension of Ms Cook. 19RT 13/51000 was then listed for hearing together with RT 13/46431 on 13 November 2013. Background 20It appears to be agreed between the parties that on or about 17 July 2008 the applicant and the respondent agreed that the applicant was to occupy room 7, 34 Stanmore Road Enmore NSW 2024. It is agreed that 34 Stanmore Road Enmore is a registered boarding house. It also appears to be agreed that on the same date the applicant and the respondent signed a document headed "Boarding/Lodging House Rules". This document asserts that the boarders/lodgers agree their legal status is that of a boarder or lodger. Further, it is also agreed that on or about 14 August 2008 the applicant sought to move from room 7 to a larger room, being room 9. It is asserted by the respondent but denied by the applicant that the "Rules" document just described was amended by a hand-written notation at the bottom of the document stating "moved to room 9 on 14 August 2008" and that notation was initialled by both parties. 21The applicant thereafter lived in room 9 until he was evicted in September 2013. Although the circumstances of the eviction process are vigorously disputed by the parties. It appears that the applicant was evicted on 17 September 2013 and on 19 September 2013 the respondent changed the lock or locks on the door of room 9. 22It is the applicant's case that when he moved from room 7 to room 9 he changed his status from boarder/lodger to tenant. The applicant alleges that much of the documentary material provided by the respondent, including the "Rules" document, or rather the notations made to that document, including the applicant's initials, are forgeries or later additions. In turn, the respondent alleges in his submissions that many of the documents produced by the applicant are forgeries. 23In these circumstances, the Tribunal is required to determine as a preliminary issue whether the applicant is or was a boarder or a tenant. SUBMISSIONS Applicant 24The applicant's submissions are lengthy and very detailed. They are replete with paragraphs attempting to prove the lack of authenticity or outright forgery of at least some of the respondent's documents. They consider in detail the legal principles to be considered in deciding whether the correct status is that of boarder or tenant. I do not propose to summarise these submissions at length. 25In my opinion, the primary submissions of the applicant are as follows: (1)legal status is an objective consideration, rather than relying on the subjective intention of the parties; (2)the basic test is whether the occupant is given sole possession of the premises to the exclusion of the landlord. 26Many of the other submissions made by the applicant are subordinate to the above, in my view. For example, the applicant makes submissions in relation to whether the landlord resides on the premises, or employed, at particular times, a building or house manager. 27In regard to the two main submissions, the applicant submits that following a break-in he installed locks to the door of room 9, that the respondent did not have keys to those locks and that therefore the respondent was denied entry to room 9 except with the permission and agreement of the applicant. Respondent 28The respondent directly contradicts most of the applicant's submissions and likewise accuses the applicant of forging various documents. The respondent also accuses the applicant of other illegal behaviour including making threats and stalking the respondent. However, as with the applicant, the respondent's submissions really come down to one main contention: the applicant signed the "Rules" document and thereby acknowledged and agree his status was that of a boarder/lodger and further that the applicant's status did not change when the applicant moved from room 7 to room 9. 29The respondent denies the applicant fitted the locks to the door of room 9. He states that he, the respondent, fitted those locks and gave the keys to the applicant. 30The respondent also asserts that the respondent and/or his manager provided certain cleaning services, and that some furniture was provided to the applicant (shown on "Inventory" forms) as well as linen, at least in the beginning of the applicant's occupation. Consideration and Decision 31Both parties provided a number of previous Tribunal decisions. I have read these documents and also reviewed the lengthy section in relation to distinguishing between "boarders" and "tenants" in the standard text in this area, Anforth, Christensen and Taylor, "Residential Tenancies Law and Practice New South Wales," 5th Ed., 2011, §[2.3.7]. 32In my opinion it is not necessary in these particular applications to review the principles contained in the parties' submissions and references. The question is resolved by making a factual finding on the evidence presented: that is, the parties signed the agreement headed "Boarding/Lodging House Rules" and I am satisfied this established the legal status of the applicant to be that of a boarder. Further, I am not satisfied that the applicant's status changed when he moved from room 7 to room 9. There is nothing in the account given by the applicant (in supplementary written submissions provided after the hearing) as to how he came to move rooms, that suggests anything to the contrary. I am also of the opinion that such an important change of status would require some documentary confirmation, if not in the form of a formal lease, at least in the form of some written acknowledgement or agreement. 33It is necessary to acknowledge that the house rules may not have been displayed as asserted by the respondent and denied by the applicant. It may be that from time to time there was or was not a house manager on the premises. The house rules may not have been applied consistently. Nevertheless, these factors do not alter the character of the agreement made by the parties initially (to use the words of Member Corley in Ryan v Wong (unreported) RT 09/46116 dated 26 October 2009). 34I find the applicant was a boarder and not a tenant. 35The following orders are made: (1)Applications RT 13/46431 and RT 13/51000 are transferred to the General List. (2)Applications RT 13/46431 and RT 13/51000 are to be listed together for directions at the earliest available date for 45 minutes. G Meadows Senior Member Civil and Administrative Tribunal of New South Wales 1 April 2014 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: 20 June 2014