Mae v Ho and ors [2021] NSWCATAP 5

Mae v Ho and ors [2021] NSWCATAP 5

The Tribunal and Appeal Panel found that regardless whether the sub-leases were residential tenancy agreements or occupancy agreements under the Boarding Houses Act, the respondents were entitled to return of their deposits once the appellant lost possession of the premises; Tribunal had jurisdiction under either regime; terms purporting the arrangements as commercial or excluding residence were sham, contradicted by actual occupation and evidence; appeal lacked merit and was dismissed.

Parties
Appellant: Garnet Mae; First Respondent: Katherine Ho; Second Respondent: Lauren Rhall; Third Respondent: David Aznar Mathonneau; Fourth Respondent: Randolph Fields; Fifth Respondent: Alvaro Francisco Estrada Jimenez; Sixth Respondent: Cassandra Marie Lefebvre; Seventh Respondent: Iane Silva Da Cruz; Eighth Respondent: Tim Chang
Jurisdiction
Australia
Judgment Date
11 January 2021
Procedural Posture
Internal Appeal / Appeal Panel Decision
Outcome
Leave to appeal refused; appeal dismissed.
Legal Topics
Lease V Licence Distinction, Boarding Houses Act Applicability, Residential Tenancies Act Applicability, Jurisdiction of Tribunal, Return of Rental Bond/security Deposit
Tenancy Landlord and Tenant Administrative Law Lease V Licence Distinction Boarding Houses Act Applicability Residential Tenancies Act Applicability Jurisdiction of Tribunal Return of Rental Bond/security Deposit

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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

Procedural Posture

Internal Appeal / Appeal Panel Decision

Legal Issues

  1. 1 Legal characterisation of head lease (16 October 2019 agreement): lease, licence, or residential tenancy agreement
  2. 2 Characterisation of sub-leases: commercial agreement, residential tenancy agreement, or occupancy agreement under Boarding Houses Act
  3. 3 Whether Tribunal has jurisdiction to determine return of deposit dispute

Ratio Decidendi

The Tribunal and Appeal Panel found that regardless whether the sub-leases were residential tenancy agreements or occupancy agreements under the Boarding Houses Act, the respondents were entitled to return of their deposits once the appellant lost possession of the premises; Tribunal had jurisdiction under either regime; terms purporting the arrangements as commercial or excluding residence were sham, contradicted by actual occupation and evidence; appeal lacked merit and was dismissed.

Court Disposition

Leave to appeal refused; appeal dismissed.

Orders

  • Time for appellant to lodge the appeal against decisions in proceedings RT 20/22863 and RT 20/22864 extended to 8 October 2020
  • Leave to appeal, insofar as required, refused