Shapkin v The University of Sydney

1. [1]

   THE COURT: The application currently before the Court is the latest chapter in a long running dispute between Mr Vasily Shapkin and the University of Sydney concerning the question whether the University acted lawfully when it evicted Mr Shapkin on 27 September 2022 from student accommodation provided by it on the grounds of misconduct. The answer to that question turns on whether Mr Shapkin’s residence in that accommodation was governed by the Residential Tenancies Act 2010 (NSW) (the RT Act).

Background

1. [2]

   Mr Shapkin was at the time of his eviction undertaking a Master of Laws degree at the University. The accommodation in question consisted of a room in a terrace house located in Darlington Road, Darlington, adjacent to the Economics and Business building at the University’s main campus in Camperdown and Darlington. Mr Shapkin shared the house with two other undergraduate students. It appears the terrace house comprised half of a single building. The other half was owned privately by Mr Terence Lord. The terrace house was one of 39 properties in Darlington Road that were owned by the University, most of which are used for student accommodation. In all, the University provides accommodation for approximately 1900 students in various types of facilities and residences that are managed by a department of the University known as Student Accommodation Services.

2. [3]

   The terms on which Mr Shapkin occupied the room were governed by a document titled “Residential Agreement Acknowledgement” (the RAA) dated 19 April 2022 that had been signed by Mr Shapkin.

3. [4]

   The RAA relevantly provided:

4. [5]

   The Terms and Conditions relevantly provided:

5. [6]

   Following complaints made on 25 and 28 August 2022 by two other undergraduate students about Mr Shapkin’s conduct, on 23 September 2022 the University’s Office of Student Life sent Mr Shapkin a notice of termination terminating the RAA in accordance with cll 8(c) and 16(c) of the Terms and Conditions (which are not in evidence). Following an offer of alternative temporary accommodation, which Mr Shapkin declined, on 27 September 2022 Student Accommodation Services sent Mr Shapkin an email advising him that he was no longer permitted to enter the terrace house and that the locks had been changed.

6. [7]

   Following his eviction, Mr Shapkin commenced proceedings in the NSW Civil and Administrative Tribunal (Tribunal) seeking relief under the RT Act. That application was heard urgently by RC Titterton OAM, a Senior Member on 29 September 2022, who delivered a decision on 4 October 2022.

7. [8]

   The principal issue before the Tribunal was whether the RT Act applied to Mr Shapkin’s residence at the terrace house under the RAA. Section 6 of the RT Act provides:

8. [9]

   “Residential Tenancy Agreements” is defined in s 13 to mean:

9. [10]

   Section 8 of the Act relevantly provides:

10. [11]

    Sections 11 and 12 of the Act provide:

11. [12]

    Clause 31 of the Residential Tenancies Regulation 2019 (NSW) made under s 12 of the RT Act (the Regulation) relevantly provides:

12. [13]

    The Tribunal concluded that the RT Act did not apply for two reasons.

13. [14]

    First, the RAA was an agreement under which a person “lodges with another person” and therefore fell within the exclusion contained in s 8(1)(c) of the RT Act. In reaching that conclusion, the Tribunal accepted that the fact that the RAA described Mr Shapkin as a “lodger” was not determinative. However, it found that Mr Shapkin was a lodger because he did not have exclusive use and control of the terrace house and because of the other facilities and services provided by the University under the RAA.

14. [15]

    Second, the Tribunal concluded that the premises in which Mr Shapkin resided fell within the terms of cl 31 of the Regulation. It accepted evidence led by the University that it owned the terrace house. What was critical for the Tribunal was the fact the house was used principally to accommodate students of the University. The fact that it was a house that only accommodated three people did not prevent it from being a “hall of residence”.

15. [16]

    Accordingly, the Tribunal relevantly made the following orders:

16. [17]

    Mr Shapkin appealed to an Appeal Panel under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act). That section relevantly provides that an internal appeal may be made “as of right on any question of law, or with leave of the Appeal Panel, on any other grounds”. 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 Schedule 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:

17. [18]

    Section 80(3) of the NCAT Act provides:

18. [19]

    The appeal was heard on 14 December 2022. The Appeal Panel delivered its decision on 9 January 2023: Shapkin v The University of Sydney [2023] NSWCATAP 2.

19. [20]

    Mr Shapkin raised a large number of grounds of appeal before the Appeal Panel. They included the following (as set out in the Appeal Panel’s reasons at D[46]):

20. [21]

    In comprehensive reasons, the Appeal Panel rejected Mr Shapkin’s submissions. In relation to the question whether the RAA was “an agreement under which a person … lodges with another person”, the Appeal Panel summarised the relevant principles in the following terms at D[90]:

21. [22]

    The Appeal Panel observed that the agreement gave the University significant control and authority over the premises including (at D[79]):

22. [23]

    The Appeal Panel considered that those facts were sufficient to establish that the arrangement was one by which Mr Shapkin “lodges with another person”. In reaching that conclusion, the Appeal Panel rejected Mr Shapkin’s submission that the arrangement was not one in which he “lodges with another person” because the University did not maintain a permanent physical presence at the house (at D[82]) and his submission that he was not a lodger because the University did not always enforce the terms of the agreement (at D[83]-[85]).

23. [24]

    In relation to the question whether cl 31 of the Regulation applied, the Appeal Panel accepted that the house was a “hall of residence for students” for the purposes of cl 31. In its view, what was critical was the way in which the house was managed, which in this case was clearly to accommodate students attending the University. The Appeal Panel accepted that the proper construction of cl 31 did not require there to be a minimum number of students or for there to be characteristics of communal living: at D[105]. Nor did it consider it relevant that half the actual building was owned privately by Mr Lord. As is apparent from the wording of cl 31, the clause is concerned with “residential premises”, not buildings.

24. [25]

    The Appeal Panel also considered the other grounds of appeal raised by Mr Shapkin. They are not relevant to the current application.

25. [26]

    Mr Shapkin sought leave to appeal from the Appeal Panel’s decision. Under s 83(1) of the NCAT Act “[a] party to an external or internal appeal may, with leave of the Supreme Court, appeal on a question of law to the Court against any decision made by the Tribunal in the proceedings”.

26. [27]

    The application for leave to appeal was heard by Campbell J on 7 December 2023. His Honour delivered judgment on 27 August 2024: Shapkin v The University of Sydney [2024] NSWSC 1091. The material before his Honour (including the grounds of appeal) was not before this Court. However, it is apparent that Mr Shapkin sought to raise again many of the grounds of appeal that he had raised before the Appeal Panel, including the grounds that sought to raise “jurisdictional error of one kind or another or impugn the process of fact finding in some way” (J[9]). As his Honour pointed out, those grounds may themselves raise questions of law for the purposes of s 83 of the NCAT Act. However, his Honour thought that leave to argue those grounds should not be given until he determined the central questions of law sought to be agitated by Mr Shapkin — namely, the meaning of the expression “lodges with another person” in s 8(1)(c) of the RT Act and the question whether cl 31 of the Regulation applied.

27. [28]

    In relation to the first of those questions, his Honour observed that the “central question before the Appeal Panel, as it remains before me, was whether the expression ‘lodges with another person’ means that the householder or householder’s representative must also reside within the premises during the term of the relevant agreement or whether the principle of remaining in possession and retaining control as master of the house admits of the possibility of an absentee or non-resident ‘master of the house’”: J[23].

28. [29]

    In relation to that question, after discussing the decision of Hasluck J in Commissioner for Fair Trading (WA) v Voulon [2005] WASC 229 (a case on which Mr Shapkin placed emphasis both before the primary judge and before us) and the cases discussed by Hasluck J in that case, including The Commonwealth v Bogle, Boreham and Clark (1953) 89 CLR 229; [1953] HCA 10, the primary judge concluded that what was important was whether the landlord exercised legal possession, not physical possession over the premises. The primary judge considered that that conclusion was supported by the fact that if the expression “lodges with another person” required the landlord to be in physical possession, the consequence would be that the exclusion would only operate where the landlord was a natural person. There was nothing in the context of the RT Act to support the exclusion of s 8(d) of the Interpretation Act 1987 (NSW), which states that a reference in an Act to a person “does not exclude a reference to a corporation merely because elsewhere in the Act or instrument there is particular reference to a corporation …”: J[42].

29. [30]

    In relation to cl 31 of the Regulation, the primary judge, after considering several arguments raised by Mr Shapkin that were repeated before us and are dealt with below, concluded that that clause did apply to exclude the application of the RT Act to the terrace house where Mr Shapkin was accommodated.

Principles applicable to the grant to leave to appeal

1. [31]

   A grant of leave to appeal generally requires there to be identified an issue of principle, a question of public importance or a reasonably clear injustice going beyond something that is merely arguable: McEvoy v Wagglens Pty Ltd [2021] NSWCA 104 at [35] per Bell P and Payne JA; Jaycar Pty Limited v Lombardo [2011] NSWCA 284 per Campbell JA (Young and Meagher JJA agreeing); Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 (Smith) at [28] per Gleeson JA (Macfarlan and Payne JJA agreeing); Gibson v Drumm [2016] NSWCA 206 at [19] per Beazley P and Simpson JA; Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69 per Kirby P at 3.

2. [32]

   It is well established that it is not sufficient merely to show that the primary judge was arguably wrong: Smith at [28]; Be Financial Pty Ltd v Das [2012] NSWCA 164 at [32]. Moreover, leave to appeal should not be granted where it cannot be said that the primary judge was arguably wrong, since in that case, it cannot be said that the appeal raises an issue of principle or a question of public importance or that a reasonably clear injustice has resulted from the decision.

Proposed grounds of appeal

1. [33]

   Mr Shapkin’s draft notice of appeal raises three broad grounds of appeal, the first two of which contain multiple sub-grounds. The first ground raises the question whether “there is a residential tenancy agreement to which [the RT Act] applies”. That, in turn, is said to raise several questions, one of which is whether the exclusion in s 8(1)(c) applies. The second ground concerns the proper construction of cl 31 of the Regulation. The third concerns the question whether the primary judge erred in concluding that there was no utility in granting leave to appeal in circumstances where the term of the agreement under which Mr Shapkin occupied his room in the house expired on 5 December 2022. Mr Shapkin appears to contend that there was utility because “upon expiry of a fixed agreement, an agreement turns into a periodic agreement, and therefore, there is utility to move back into the residential premises”.

Should leave be granted?

1. [34]

   There is no merit in the proposed third ground of appeal. The primary judge granted Mr Shapkin leave to appeal on the two principal issues raised by his claim. In refusing leave to appeal on the other grounds raised by Mr Shapkin, one reason his Honour gave was that there was no utility in determining those grounds if the true position was that the RT Act did not apply. That was because, even if Mr Shapkin could establish that in some way or another he had not received a fair hearing in the Tribunal, a new, properly conducted hearing could not possibly lead to a different result: J[13]. The expiry of the RAA was a further factor supporting the futility of a further hearing: J[15]. Even if his Honour was wrong about the expiry of the RAA (which is not for us to decide on this application), it remained the case that a rehearing in the Tribunal would be futile if Mr Shapkin failed on either of his two principal grounds of appeal, and the RT Act did not apply. Accordingly, leave to appeal should not be given in relation to Mr Shapkin’s proposed third ground of appeal.

2. [35]

   In relation to the remaining two proposed grounds, Mr Shapkin needs to demonstrate a reasonably arguable case that the primary judge erred in his approach to both s 8(1)(c) of the RT Act and cl 31 of the Regulation, as they constitute independent bases on which his Honour concluded that the RT Act did not apply. For the reasons set out below, the proposed second ground of appeal, which involved cl 31 of the Regulation, is not reasonably arguable. In those circumstances, the determination of the issues raised in the proposed first ground of appeal would not affect the outcome of the appeal, rendering the present case an unsuitable vehicle for consideration of those issues.

3. [36]

   The second proposed ground of appeal contains twelve sub-grounds, a number of which are expressed in obscure language and have little to do with the actual language of cl 31. In essence, it appears that Mr Shapkin seeks to advance three arguments for why cl 31 does not apply. The first is that a three-bedroom terrace cannot properly be described as a “hall of residence”. The second is that “owned” as used in cl 31(1)(b) carries with it a requirement that the hall of residence be within the boundaries of the University. That conclusion is said to be supported by s 3.45 of the State Environment Planning Policy (Transport and Infrastructure) 2021 (NSW) (the TI SEPP), which provides that “Despite section 3.44(2), development for the purposes of campus student accommodation may be carried out by a person with development consent on land within the boundaries of the university”. Third, it appears to be suggested that the primary judge could not be satisfied that the University was “registered”.

4. [37]

   None of these arguments has any merit. The expression in cl 31(1) of the Regulation is “Residential premises used … principally as a … hall of residence for students of an educational institution”. The terrace house plainly falls within the description “residential premises”. It is plainly being used as a “hall of residence for students”, since it is being used to accommodate students while they are studying at the University. Even if, contrary to the conclusions of the Appeal Panel, the concept of a “hall of residence” carries with it a communal aspect to the conditions under which the students live, that requirement is satisfied in this case, since the common areas of the house are shared by the students who reside in it.

5. [38]

   It is equally plain that premises that are used as halls of residence are excluded from the operation of the Act because of the particular function that they perform — that is, providing accommodation to students while they are studying at an educational institution. Whatever reasons make it appropriate to exclude accommodation of that type from the operation of the Act apply equally to the accommodation provided by the University at the house in question. Consequently, an interpretation of the clause that had the effect of excluding the house would be inconsistent with the purpose of the exclusion.

6. [39]

   As to Mr Shapkin’s second argument, cl 31 relevantly applies to premises “located within the institution” (para (a)) “or” premises “owned by the institution” (para (b)). Plainly, the clause is intended to cover premises that are owned by the institution outside the institution’s geographic boundaries, since otherwise para (b) would be superfluous. Moreover, there is no reason not to give the word “owned” its ordinary meaning in para (b). As ordinarily understood, that meaning does not carry with it the notion that the premises be located within the principal geographic boundaries of the relevant institution.

7. [40]

   Mr Shapkin’s reliance on provisions of the TI SEPP in this context, which entered into force after the Regulation, was misplaced. Section 3.44 of the TI SEPP provides that in Part 3.5, titled “Universities – specific development controls”, “development for the purposes of a university does not include development for the purposes of campus student accommodation”. Section 3.45 of the TI SEPP is an exception to that exclusion where development for the identified purpose is carried out with development consent “on land within the boundaries of the university”. That exception, in a planning instrument, which applies in its terms to land within the boundaries of a university, provides no assistance on the question of what is meant by “owned” in cl 31 of the Regulation.

8. [41]

   As to Mr Shapkin’s third argument, the question is whether the University is constituted “by or under an Act”. It plainly is: the University of Sydney Act 1989 (NSW).

9. [42]

   The proposed second ground of appeal should be dismissed. It follows that leave to appeal should also be refused in relation to the proposed first ground of appeal, which concerned s 8(1)(c) of the RT Act, as determination of the issues raised by that ground would not affect the outcome of the appeal in the present case. The conclusion that leave to appeal in relation to the proposed first ground should be refused in those circumstances is reinforced when it is borne in mind that the issues have already been considered in detail by the Tribunal, both at first instance and on appeal, and by the primary judge, and in each case has been resolved by reference to well-established principles.

Conclusion and orders

1. [43]

   For the reasons given, Mr Shapkin has no reasonable prospects of succeeding in his appeal. Accordingly, leave to appeal should be refused. There is no reason why Mr Shapkin should not pay the University’s costs of the application for leave to appeal.

2. [44]

   The orders of the Court, therefore, are:

   1. (1)

      Leave to appeal refused;

   2. (2)

      The applicant to pay the respondent’s costs of the application for leave to appeal.