Kendall v State of Queensland through the Department of Communities Housing & Homelessness

[2012] QCAT 115

CITATION: Kendall v State of Queensland through the Department of Communities Housing & Homelessness [2012] QCAT 115

PARTIES:	Tracy Kendall (Applicant)
v
State of Queensland through the Department of Communities Housing & Homelessness t/a Housing and Homeless Services (Respondent)

APPLICATION NUMBER: MCDT875-11 (Beenleigh)

MATTER TYPE: Residential tenancy matters

HEARING DATE: 9 January 2012

HEARD AT: Beenleigh

DECISION OF: Trevor Davern, Adjudicator

DELIVERED ON: 8 February 2012

DELIVERED AT: Beenleigh

ORDERS MADE: The Respondent is to pay the Applicant the sum of $2,240 within 28 days.

CATCHWORDS:

Abandonment and goods left on premises – Compensation claim by tenant after goods destroyed by lessor – properly establishing justification by lessor before destruction of abandoned goods – quantifying amount of compensation

Residential Tenancies and Rooming Accommodation Act 2008, s 363(2)

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Ms T Kendall with Ms Elizabeth Skinner – Family Support Worker (Kingston East Neighbourhood Group)
RESPONDENT:	Mr Shane Christenson – Area Manager

REASONS FOR DECISION

1. The Applicant tenant is seeking compensation in the amount of $25,000.00 for loss of personal goods that were left on the premises when the tenancy agreement terminated.  The Applicant is a single mother of four children, and has lost the majority of her possessions.  An inventory of items lost and their respective values has been provided with the Application.

2. Chronology

14/4/11

Ms Kendall was provided with government housing (for the first time).

8/6/11

After a visit by departmental officers it was decided that the property had been abandoned.  A Notice of Abandonment was issued accordingly, with an expiry date of 24/6/11.

The only rent payment of $798.60, was received from the Salvation Army. 

15/6/11

A support worker from Kingston East Neighbourhood Centre called to advise that Ms Kendall was concerned that she was going to be evicted.

20/6/11

Staff at the Woodridge Housing and Homelessness Service Centre unsuccessfully attempted to communicate with Ms Kendall via telephone, and left a message.

22/6/11

Departmental staff visited the property and assessed that there was no sign of any habitation or visitation by Ms Kendall.  Ms Skinner made telephone contact with the Department of Housing and was informed by ‘Jala’ that an Abandonment Notice had been issued and that Ms Kendall’s possessions would be put into storage and Ms Kendall would have to pay to get her belongings back.

28/6/11

Officers representing the Respondent entered the property and had the locks changed.

19/10/11

Hearing commenced and adjourned with directions that the Respondent was to provide a written response to the claim, including details of how the subject goods were dealt with and valued.

9/1/2012

Hearing completed and decision reserved.

1. As directed, the Respondent provided its written response to Ms Kendall’s claim on 4 November 2011.  The response document describes different activities involving staff in general, but does not identify any individual staff member with any actual or alleged activity or event.  Mr Christensen appeared at the hearing on 9 January 2012 to represent the Respondent.  He personally has not had dealings with this matter.

2. The Respondent claims that on 24 June 2011 a Senior Housing Officer from the Woodridge Housing & Homelessness Services contacted the Kingston East Neighbourhood Centre and left a message for Ms Skinner to call back urgently.  No record of any such message has been found at the Neighbourhood Centre.     

3. Ms Skinner provided clear evidence that on 22 June 2011 she was informed by a staff member (Jala) that after the expiry of the Abandonment Notice, that any remaining property belonging to Ms Kendall would be put into storage and Ms Kendall would have to pay to get her belongings back.  There is nothing from the Respondent in any sufficient form to contradict or diminish any of the evidence that has been provided by Ms Skinner.

4. After depositing her property in the rental premises in April, Ms Kendall did not arrange to have the power connected and did not live at the property at any stage.  Her excuse for not moving in was that she needed to be elsewhere for urgent medical treatment of her youngest child (one year old).  However, Ms Kendall confirms that she made a number of visits to the rental property but did not stay overnight.  There is nothing to indicate the Applicant tenant made any effort to inform the Respondent of what was happening or of her intentions with regard to the property and the tenancy agreement.  The only rent payment recorded was made on 8 June 2011, and was paid by a charity.  The easy pay arrangement that Ms Kendall had agreed to pay on 1 June 2011 was terminated by her at Centrelink the day before the first payment was due to come out.  

5. There is clear evidence that the tenant has not displayed any appreciation for having received the benefit of public housing, and she has not complied with her obligations with the tenancy agreement that she was provided with.  However, this case is about the losses she has suffered after her property was dumped by the Respondent.

6. The Respondent has provided a large number of photographs of items left at the property, coupled with an itemised list of items found in various rooms.  Some boxes and bags were left sealed.  From the Respondent’s evidence alone, the nature, variety and volume of goods involved are such, that it could be easily envisaged that they could have a value of $1,500 or more.  The Respondent does not appear to have applied any objective process of valuation, beyond an agreement between staff and management (within the Respondent organisation) that “the cost of removing the goods, storing or selling the goods would be more than the proceeds of the sale of the goods”.  However, by its own account, the Respondent has not relied upon this point when communicating (directly or indirectly) with the tenant.  By the Respondent’s account in its response document (27/6/11) “Furthermore staff advised the support worker if any belongings worth more than $1500.00 remained in the premises the department would place these items in storage for 30 days for the client at her expense”.  From the available evidence it is determined that the Respondent failed to carry out any appropriate or sufficient valuation process before the subject property was dumped. 

7. From the way that the issues have been managed by the Respondent, it is determined that Ms Kendall could reasonably rely upon what she had been told, that “…if any belongings worth more than $1500.00 remained in the premises the department would place these items in storage for 30 days for the client at her expense”.  It is also determined that Ms Kendall could also reasonably assume that the value of the items was likely to be in excess of $1,500.00.

[10]  The Respondent’s staff also determined that if the Q Build Contractors did not find any personal documents during their closer scrutiny, then the contractors were to dispose of the goods.  We do not have the benefit of any report from any scrutiny that might have been carried out by the Q Build Contractors.

[11]  The Respondent has not sufficiently identified any reasonable grounds upon which we could be satisfied that ‘the cost of removing, storing and selling the goods would be more than the proceeds of the sale of the goods’.  To satisfy this requirement the Respondent could have presented a quote on storage costs for the period of a month.  Other evidence that might have been of assistance could have been whether there was a plan to immediately re-let the property or if there could have been some further period that the goods could have remained at the property.

[12]  The Applicant’s detailed ‘Inventory of Contents’ invites closer scrutiny.  Certain items including a Balmoral bedroom suite, Vax Vacuum Cleaner and a Toshiba Laptop were not owned by Ms Kendall, but were in her possession by virtue of a rental agreement.  An email from ‘Rent The Roo Brisbane South West’ dated 26 July 2011 confirms a range of products that Ms Kendall has rented from them.  These include an LCD TV and TV unit, Balmoral bedroom suit including mattress, portable air conditioning unit, Toshiba Laptop computer and Vax Bagless Vacuum Cleaner.  The email also confirms that Ms Kendall stopped making rental payments in January 2011.

[13]  Potentially valuable items like a Playstation and games could have been secreted in a bag or box, and not immediately evident to the Respondent.  Ms Kendall made mention of her seven year old son’s anguish at no longer having the Playstation and games.  If he was missing them to that extent, I find it surprising that Ms Kendall did not recover them from the rental premises, during the course of the months involved, to give to her son.  Ms Kendall gave evidence that she had visited the property on a number of occasions.  The photographic evidence confirms that containers of children’s items and goods had been opened and disturbed.  From this I assume that certain children’s items were recovered by Ms Kendall.  I also note in the list of claimed items that Playstation games have been specifically identified with names such as “Grand Theft Auto (1-5)” and “Playboy Mansion”.  It is my understanding that these products come with an “M” rating.  

[14]  There is no way of precisely valuing the true extent of loss that has occurred.  A component of the claim relates to items of personal value to Ms Kendall such as family photographs, her father’s funeral ashes and first baby images.  I note that Ms Kendall has not indicated in which room she is supposed to have placed this collection of items.  There is nothing from the available photographs that would give any possible clue to certain items (like the Playstation and games) being in any of the rooms.

[15]  As a starting point I shall compare the itemised lists of property from both sides and the photographs, and apply a general value of property from each room, that is in part notional (not having clear proof of exactly what was in each room) as well as from my experience with assessments of value of various items from previous cases I have dealt with.  From the evidence of what was most likely in each room, I quantify the following values:

Area	Items	Value
Bedroom 1	Queen size bed frame	$350
Bedroom 2	Single ensemble bed, chest of draws, bedside table, and three bags of children’s clothing and toys	$550
Bedroom 3	Single ensemble base and bed, chest of draws	$350
Kitchen	Cook books	$50
Dining room	Vacuum cleaner, extensive collection of children’s toys and other items (many in boxes that appear to have been opened and rummaged through)	$250
Lounge room	Three piece modular lounge, carpet	$450
Laundry	Hoover washing machine with bent lid	$100
Garage	Bikes, scooter and filing cabinet	$140
TOTAL	$2,240

[16]  From this assessment, it is determined that the Respondent should pay compensation to the Applicant in the sum of $2,240.00.