Q1

There are a number of issues to determine if Meg has liability with respect to Flixwork’s alleged loss,
namely:
1. Can Meg lease the premises?
2. does Meg have a lease with Flixwork?;
3. does Meg have a lease Nick and Olga (“the Couple”);
a. is the Couple’s licence to Tattle valid?;
4. if valid, is Meg liable to Flixworks for damage arising thereunder?; and
a. Does Meg have an obligation of Quiet Enjoyment (“QE”) to Flixworks.
Meg is the registered proprietor of the property pursuant to the Real Property Act 1886 (SA),
therefore, Meg has the right to create a (or multiple) leasehold estates out of her estate in fee simple.
Flixwork Lease
The Flixwork Lease does not apply to the Residential Tenancies Act 1995 (SA) (“RTA”) as it does not
satisfy the s3 definition. The agreement must be ‘to occupy premises for the purpose of residence’. As
this is a commercial endeavour for the purposes of filming and not for the purpose of residence, the
lease (if any) would likely fall out of the scope of the RTA. Therefore, it would be a common law
(equitable, as no registration) lease.
Four factors must be satisfied for a common law lease to exist, including:
1. exclusive Possession;1,2
2. certainty of term;3
3. certain commencement;4 and
4. certain premises.5
There is nothing on the facts to cast doubt as to the Exclusive Possession of the Lessee, therefore such
requirement is presumed satisfied.
The Lease operates on a one month basis, which does not meet Certainty of Term, noting that periodic
leases function as exception to that rule.6
It is likely that once filming has concluded, the lessee would terminate the lease, and it is likely that
the parties intended (and Meg would have [or ought to] have known) that the lessee possess the
premises insofar that further filming is required, and would terminate thereafter (without notice) once
filming is complete. Accordingly, Flixwork’s lease is likely a ‘tenancy at will’.
Albeit the facts omit a specific date for which the lease is to commence, it is presumed this is a non-
issue, noting that a lease without an ascertainable date is invalid.
Noting the above, it is likely an equitable (as no registration) common law tenancy at will.
The Couple’s Lease
The lease would fall within the definition of s3 RTA, being that the lease ‘grants another person[s], for
valuable consideration a right to occupy the premises for the purpose of residence’.

1
Street v Mountford [1985] AC 809
2
Radaich v Smith (1959) 101 CLR 209
3
Lace v Chantler [1944] KB 368
4
Harvey v Pratt [1965] 1 WLR 1025 (CA)
5
Goldsworthy Mining Ltd v FCT (1973) 128 CLR 199
6
Butcher v Bowen [1964] NSWR 36
Albeit the facts do not articulate a form of valuable consideration, it is assumed that the tenants’s
consideration is that of at least a peppercorn.7
Certainty of term is not required pursuant to the RTA, however the lease does in fact have a term of
five years with a commencement date of 1 September 2022.
Therefore, the lease is likely subject to the RTA and is valid thereunder. Further it is a legal lease as
Nick registered it to record the leasehold interest.
Tattles ‘Licence’
A license must have:
1. certainty of term;
2. consideration;
3. with specific premises, and
4. no exclusive possession.

An RTA lease need not have exclusive possession, but the purpose of the license is not for residence,
so would not be an agreement subject to the RTA.

There is a specified period of two months satisfying a term, a fee is payable by Tattle and the room
specifies the premises. The license also has restrictions on the hours of use and the permitted use of
the room. The scenario is silent on whether the Couple still enjoy access to the room, therefore it’s
assumed they do. Their license is likely a license and not a sub-lease.

Unless Meg and the Couple’s lease provides otherwise, a license can be granted, and is likely valid.
QE
The Landlord must provide peaceful and uninterrupted possession of leased premises, 8and must also
take reasonable steps to prevent tenants in adjacent premises from causing or permitting interference
with the reasonable peace, comfort or privacy, which can be violated through acts of third parties
(where it could be reasonably foreseen).
Lessor’s must not authorise anything rendering the leased premises less fit for the purpose for which it
was granted, Mcpherson J noted that “…if a landlord authorises another of its tenants…by
implication, to do anything on another portion of his property which renders the…premises of the…
tenant unfit for the carrying on of the particular business for which it was demised…the landlord
breaches [QE].9
Meg cannot have reasonably foreseen that the Couple would license to a paparazzi company, nor did
she authorise the license, rather denied liability. Meg does not have a contractual nexus to Tatter, and
(unless she is so authorised under the Couple’s lease) cannot restrict or prohibit the license under the
Privity of Contract Doctrine. Unless a provision in the lease assures that Meg will guarantee QE,
including interference by any third party, it is unlikely that any cause of action arises.
Substantial Breach

7
See Chappell & Co v Nestle Co Ltd ([1960] AC 87)
8
Aussie Traveller v Marklea [1998]1 QdR 1 (“Aussie Traveller”)
9
Ibid, p.3 at [15]
A breach of QE must have “…direct and physical interference with the land and mere annoyance is
insufficient”.10 Substantial “range[s] from not ephemeral…to considerable…or big. 11 It is unlikely that
photographs rendered the premises ‘‘substantially less fit for the purpose for which they were let”. 12
It’s unlikely that the taking of pictures in fact renders the premises substantially less fit, as pictures
would similarly be taken from the public road.
Therefore, Meg is likely not liable to Flixwork:
1. Meg did not authorise, or permit any interference of Flixwork’s QE (noting the nature of the
interference is minor);
2. Meg could not have reasonably known that the Couple would interfere (by licence to Tatter)
with the reasonable peace, comfort or privacy of Flixworks;
3. No contract exists between Meg and Tatter.

Q2(i)
As aforementioned, the Licence to Tatter is valid, assuming no limitation under their lease prohibits
such licence being granted.
Flixworks may wish to pursue a claim in nuisance, which is ‘an unlawful interference with a person’s
use or enjoyment of land…’13. Flixwork has a proprietary interest in the land (tenancy at will),
accordingly, has title to sue.14a
A nuisance requires ‘substantial interference’15 with the enjoyment of property rights, which is
interference is unreasonable.16
The licensee (Tatter) is in effect an invitee to the premises, and a tenant (licensor and lessee) must not
‘authorise’ the nuisance which would reasonably be foreseen to cause that nuisance. 17
Substantial Interference
Noting that a small fence does already exist separating the premises, but does little to improve
privacy, and Latham J’s remarks regarding the erection of a taller fence to induce privacy in Victoria
Park Racing,18 given Flixworks will not lease the premises for a prolonged period, this statement is
not (in the circumstances) helpful.
Invasion of privacy is a question of degree; 19 the frequency of the videography may enliven a claim of
nuisance if done deliberately to invade the privacy of a neighbour, or repeated photographs and
surveillance.20
Unreasonableness
A reasonable person in the Couple’s position ought to have known that constant filming of Flixwork
would be of an interference of privacy substantial enough to cause a nuisance, however in light of

10
Southwark LBC v Mills [1999] 3 WLR 939;
11
Aussie Traveller p.10 at [5]
12
Ibid p.11 at [5]
13
Hargrave v Goldman (1963) 110 CLR 40, 60
14
Hunter v Canary Wharf Ltd [1997] AC 655
15
Andreae v Selfridge [1938] Ch 1; [1937] 3 All ER 255
16
Thompson-Schwab v Costaki
17
Challen v McLeod Country Golf Club
18
Victoria Park Racing v Taylor (1937) 58 CLR 479
19
Raciti v Hughes (1995) 7 BPR 14,837
20
(UK) Bernstein v Skyviews [1978] QB 479
case law not recognising invasion of privacy as a nuisance, it is likely a court would find no nuisance
arises.
Notwithstanding the above, Flixworks might seek (in their ungrounded claim) a ‘prohibitory’
injunction to prevent the Couple from authorising the activity causing the alleged nuisance (as
Flixworks have already done), or seek a ‘mandatory’ injunction, which would compel the Couple to
do something, but is less common.

Q2ii.
Any liability the Couple have to Meg would be subject to the terms of their Lease Agreement as
liability would (and should) likely have been expressly clarified in their Agreement. The facts
articulate no prohibition on licensing (as contrasted with subleasing) is articulated.

Q3
As the lease is subject to the RTA, Meg cannot terminate before the end of the fixed term unless a
breach occurs. If Meg wishes to terminate as a result of a breach, the procedures in s80 (1) RTA must
be complied with.
Upon application to SACAT, Meg can terminate for a breach that is unable to be remedied. Prima
facie, the Couple have not done any act which would constitute a “breach [that] is sufficiently serious
to justify termination of the tenancy”.21
S90 – Unacceptable Conduct
If the couples conduct is considered ‘unacceptable’, SACAT can terminate the Agreement 22
particularly if the tenant has “permitted a nuisance” 23, or “permitted an interference with the
reasonable peace, comfort or privacy of another person who resides in the immediate vicinity of the
premises”.24
As aforementioned, the Couple likely did authorise disturbance to Flixworks, but such disturbance is
not of a mode recognised at common law, therefore, s90 (1) b, likely does not apply.

Q4–Reform
Numerous legislative reform initiatives are being considered by both State and Federal Government,
including pets and rent freezes.
Under the proposed bill, Landlords cannot unreasonably refuse to allow pets into premises. Such test
of reasonableness will likely have regard to:
1. the nature and type of pet;
a. being its proclivity to causing damage or disrepair to the premise;
2. the nature of the premises;
a. the age of the premises and whether it is particularly susceptible to damage;
b. whether the flooring is carpet (prone to animal fur) or a hard surface more resilient to
damage.
Ultimately, damage that occurs either by a pet, or by simply living in the property (other than that of
general wear and tear), and provided that the Landlord has requested a bond, the bond would likely

21
s87(1)(b) RTA
22
s90 RTA
23
s90(1)(b) RTA
24
s90(1)(c) RTA
cover the entire quantum of the damage, and any further damage comes at the cost to the Tenant
insofar that such damage is due to abuse or neglect of the tenant, not general wear and tear.
Therefore, if the above were to be legislated, it would be likely (depending on a number of factors)
that having a puppy will not affect their ability to find suitable accommodation.
Rent freezes
Rents have rapidly risen in most of Australia’s capitals due to a number of factors such as immense
migration, lack of housing supply, and increases in the cash rate by
the Reserve Bank of Australia due to record inflation caused by the
reduction of interest rates to record lows to artificially stimulate the
economy during COVID-19.
The introduction of a ‘rent freeze’ as suggested by the Greens 25 is a
possible solution to rental affordability issues. Traditional economic
theory says that the introduction of a ceiling changes the
equilibrium as created by market forces causing market inefficiency (Figure 1). Which inefficiency
results in a reduced supply of dwellings, landlords cutting costs on maintenance, and ‘black markets’
forming to evade restrictions. Berlin (in 2019) imposed a rent freeze; Figure 1
26

saving renters billions of dollars before it was determined to be unconstitutional; a rent freeze may
offer a viable solution if legislated correctly.

A fragile balancing act of the interests of Landlord and tenants is required, but without legislative
reform, the Couple (and greater society) will face continuing difficultly finding affordable housing.

Words:2000

25
Rent-Freeze (2023),https://www.theguardian.com/commentisfree/2023/jun/20/will-a-national-rent-freeze-fix-australias-
housing-crisis-depends-on-who-you-listen-to.
26
Rent-Ceilings, https://courses.lumenlearning.com/atd-sac-microeconomics/chapter/reading-price-ceilings/