Scoble v Schembri [2024] NSWCATCD 34

Scoble v Schembri [2024] NSWCATCD 34

The Tribunal found that, on the balance of probabilities and taking into account the objective evidentiary indicia, the applicant was a boarder and not a tenant, as the respondent retained mastery, control and dominion over the residence. Therefore, the agreement fell within s 8(1)(c) of the Residential Tenancies Act 2010 and was not subject to that Act. The Tribunal lacked jurisdiction to determine the other claims.

Parties
Applicant: Darren Scoble; Respondent: Anthony Winston Schembri
Jurisdiction
Australia
Judgment Date
12 March 2024
Procedural Posture
Residential Tenancy/jurisdictional Application / Tribunal Principal Judgment
Outcome
Application dismissed except for a declaration that the agreement is not a residential tenancy agreement to which the Residential Tenancies Act 2010 applies.
Legal Topics
Tenant or Boarder Distinction, Jurisdictional Exclusion, Residential Tenancy Agreements, Boarding Houses
Residential Tenancies Landlord and Tenant Tenant or Boarder Distinction Jurisdictional Exclusion Residential Tenancy Agreements Boarding Houses

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Parties

Darren Scoble

Applicant

Anthony Winston Schembri

Respondent

Procedural Posture

Residential Tenancy/jurisdictional Application / Tribunal Principal Judgment

Legal Issues

  1. 1 Whether the agreement between the applicant and respondent constituted a residential tenancy agreement or fell within the boarder/lodger exception under s 8(1)(c) of the Residential Tenancies Act 2010
  2. 2 Whether the Tribunal has jurisdiction under the Residential Tenancies Act 2010

Ratio Decidendi

The Tribunal found that, on the balance of probabilities and taking into account the objective evidentiary indicia, the applicant was a boarder and not a tenant, as the respondent retained mastery, control and dominion over the residence. Therefore, the agreement fell within s 8(1)(c) of the Residential Tenancies Act 2010 and was not subject to that Act. The Tribunal lacked jurisdiction to determine the other claims.

Court Disposition

Application dismissed except for a declaration that the agreement is not a residential tenancy agreement to which the Residential Tenancies Act 2010 applies.

Orders

  • The Tribunal declares pursuant to s 11 of the Residential Tenancies Act 2010 that the agreement between the Applicant and the Respondent fell within the exception in s 8(1)(c) of the Residential Tenancies Act 2010 and as such is not a residential tenancy agreement to which the Act applies.
  • The application is otherwise dismissed.