Hinton v Berry
[2012] QCAT 24
•3 February 2012
| CITATION: | Hinton v Berry [2012] QCAT 24 |
| PARTIES: | Sarah Hinton (Applicant) |
| v | |
| Shelley Berry (Respondent) |
| APPLICATION NUMBER: | MCDT2013-11 |
| MATTER TYPE: | Residential tenancy matters |
| HEARING DATE: | 13 January 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Ron Joachim, Member |
| DELIVERED ON: | 3 February 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. That the respondent Ms Berry pay the applicant Ms Hinton the sum of $2,820 within 60 days. |
| CATCHWORDS: | RESIDENTIAL TENANCY AGREEMENT – where goods left on premises – where sub-tenant wanted to remove her goods – where sub-tenant not permitted to return to collect goods – where goods declared to be unhygienic – where most goods disposed of – where order made to compensate sub-tenant – whether rooming agreements or residential tenancy Residential Tenancies and Rooming Accommodation Act 2008, ss 9, 12, 13, 15, 16, 44, 363, 393 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Sarah Hinton |
| RESPONDENT: | No Appearance |
REASONS FOR DECISION
Background
The Tribunal received an application from Ms Sarah Hinton on 26 September 2011 in respect of a minor civil dispute arising from a residential tenancy dispute.
This application seeks $7,234 from Ms Shelley Berry who was the tenant of a property at 33 Harold Street, Zillmere. Ms Berry sublet a room in the property to the applicant Ms Hinton and her partner Daniel Hudson. This was as a result of an oral agreement.
Following a directions hearing, the QCAT registry was directed to re-serve the respondent Ms Berry with attachments to the application including a schedule of goods. The matter was heard in Brisbane on 13 January 2012 at which Ms Hinton appeared but Ms Berry did not. The Tribunal reserved its decision.
Ms Hinton advises that she lived in the premises with Daniel Hudson for three weeks until moving out on 17 February 2011. She and Mr Hudson left the premises after being attacked by two individuals known to Ms Berry. A few days after moving out she contacted Ms Berry and advised she wanted to make arrangement to come to the premises to remove her possessions from the room. Ms Hinton advises that Ms Berry told her she was not welcome at the residence, and was not allowed to ‘get her stuff’.
Approximately 10 days later she contacted Ms Berry again to arrange to collect her possessions. Ms Berry advised her that her possessions were no longer at the property and had been ‘thrown out’. Ms Hinton filed a schedule of some 65 items which she claims have gone missing at a value she estimates to be $6,914.
She seeks an order from the Tribunal for compensation for this loss. She is also seeking an order from the Tribunal that the rent paid in advance of $240 be returned to her and that $80 be returned to her from a payment of $110 she had made for an electricity bill. All up she is seeking $7,234.
Does the Tribunal have jurisdiction?
Ms Hinton characterised her arrangement with Ms Berry as a sub-letting arrangement. Ms Hinton and her partner were occupying a room in the house and using common facilities. There was no written agreement.
The Residential Tenancies and Rooming Accommodation Act 2008 (the RTA Act) provides for two types of arrangements. One is described as a Residential Tenancy Agreement (s 12) and the other a Rooming Accommodation Agreement (s 16).
Section 9 provides that premises for a residential tenancy, includes a part of the premises and land occupied with premises. This means that a tenant in a sub-letting arrangement may occupy part of the premises. A tenant includes a sub-tenant of a tenant (s 13). A residential tenancy agreement does not have to be in writing (s 12).
Section 15 describes what rooming accommodation is and includes the right to occupy one or more rooms and to share other rooms and facilities but does not include the right to occupy the whole of the premises.
A rooming accommodation agreement does not have to be in writing.
The Act does not apply to rooming accommodation agreements where the provider uses the premises for the person’s only or main place of residence and not more than three rooms are occupied or available for occupation by residents (s 44).
Ms Berry lived in the premises. It is not known how many rooms were occupied or available for occupation by residents, but on the evidence provided in the written material it is more likely than not that there were only two rooms occupied. Moreover, Ms Hinton advised that “there was another person there”.
The Tribunal is satisfied that a residential tenancy agreement existed between Ms Hinton and Ms Berry. Ms Hinton was sub-letting part of the premises and paying rent and other costs regularly. This then invokes the other provisions of the RTA Act which are relevant in this matter. In particular s 363 lays out the circumstances under which goods and documents left on the premises are to be treated. If I am incorrect and Ms Hinton was under a Rooming Agreement, s 393 of the Act applies. It also lays out the circumstances, in similar terms to s 363, under which a provider may dispose of goods. My decision is unaffected by whatever section applies.
Evidence
Prior to applying to the Tribunal, Ms Hinton engaged QPILCH to assist her with the matter. QPILCH wrote to Ms Berry on 15 June 2011 seeking payment in the same amount as claimed through the QCAT application. On 21 June 2011 QPILCH wrote to Ms Hinton after having spoken to Ms Berry about the letter of demand. The letter was written by Ms Heading, Coordinator of Homeless Persons Legal Clinic. At the hearing Ms Hinton provided the Tribunal with copies of these letters. In the letter of 21 June Ms Heading advises Ms Hinton as follows:
§ Ms Berry disagrees with the information contained in the letter of 16 June;
§ Ms Berry told QPILCH she will not pay $7,234;
§ She alleged that Ms Hinton owed money on account of unpaid utilities and damage;
§ Ms Berry advised that she kept Ms Hinton’s belongings for a period of 3 ½ weeks after which she disposed of them on advice from the Boondall police;
§ She was advised that as the belongings contained needles and swabs these created a safety and hygiene issue and therefore she should dispose of them;
§ Ms Berry confirmed that she had in her possession a television set, DVD player and set top box as the only items being retained;
§ She proposed that if Ms Hinton paid $200 on account of all money owing in regard to the unpaid utilities and damage she would return the property to her;
§ Ms Berry further claimed that some of the items on the list attached to the original letter actually belonged to her.
The Tribunal’s Conclusions
Sections 363 applies if an agreement ends and goods that are not personal documents or money are left on the premises. The Tribunal is satisfied that the agreement ended on 17 February 2011 when Ms Hinton and her partner left the premises and did not return. It is certainly the case that a range of goods were left on the premises. Sub-section 2 outlines the circumstances under which the lessor, in this case Ms Berry, may sell the goods or dispose of them. Subsection 2 of s 363 is set out below:
“(2)The person who was the lessor (the former lessor) may sell the goods, or dispose of them in another way, if the former lessor believes on reasonable grounds that –
(a)the market value of the goods is less than the amount prescribed under a regulation; or
(b)storage of the goods-
(i) would be unhealthy or unsafe; or
(ii) would cause the market value of the goods to be completely or substantially depreciated; or
(c)the cost of removing, storing and selling the goods would be more than the proceeds of the sale of the goods.
If the above does not apply Ms Berry should have stored the goods safely for a period of one month. This did not happen as Ms Berry disposed of the goods. She stated to QPILCH that she disposed of them on advice from the Boondall police that the belongings created a safety and hygiene issue because they contained needles and swabs.
The problem for Ms Berry, however, is that within a few days of leaving the premises, the applicant contacted her and asked to return to take her goods. She was told she was not welcome and no other arrangements were made. About 10 days later the applicant tried again and was told the goods had been thrown out.
In circumstances where the applicant made a genuine attempt to recover her property and was rebuffed, I consider that Ms Berry has exceeded her authority in disposing of the property. I therefore intend to find for the applicant who would have her property if she was allowed to retrieve it as she requested.
In the QPILCH letter of 21 June to Ms Hinton it is recorded that Ms Berry confirmed that she has in her possession a television set, DVD player and set top box as the only items she retained. She is not entitled to retain these items.
The question then is how much value should be attributed to the goods. On one view Ms Hinton’s estimates are unchallenged by Ms Berry. I cannot, however, accept that the values placed on the goods by Ms Hinton are reasonable. For instance, second hand books (items 14 to 19) are of minimal value. Additionally, it seems unreasonable to value two bags of a friends clothes (item 32) at $500.
Similarly used CDs and DVDs (items 5 to 8) attract little value, as does second hand clothing (item 12).
I do however need to consider the replacement value of various items. No detailed analysis of this is possible in the circumstances I have therefore only been able to do an estimate of value.
I consider that Ms Hinton is entitled to receive $2,500 from Ms Berry as recompense for her lost items.
I also consider she should be reimbursed for the rent and electricity she claims she paid in advance. This amounts to $320.
I order, therefore, that the respondent Ms Berry pay the applicant Ms Hinton $2,820 within 60 days.
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