LUI & TANG (Civil Dispute)
[2012] ACAT 72
•14 August 2012
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
LUI & TANG (Civil Dispute) [2012] ACAT 72
XD 12/518
Catchwords: Occupancy agreement - attempted sub-lease without the express written consent of the owner- unenforceable contract-penalty clauses- involuntary bailment- conversion of goods- trespass to chattels defined
List of legislation: Residential Tenancies Act 1997, part 5A
Uncollected Goods Act 1997
List of cases: Property Life Insurance Ltd v Edgar
(Unreported, NZSC, Mahon J, 15 March 1980)
Lethbridge v Phillips (1819) 2 Stark 544
AMEV-UDC Finance Ltd v Austin (1986) 162 CLR 170
List of Texts/Papers
Thomson Reuters (Professional) Australia, legal online service, definition of “Trespass to Chattels”
Tribunal: Mr P.R Thompson – Member
Date of Orders: 14 August 2012
Date of Reasons for Decision: 23 October 2012
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 12/518
BETWEEN:
LUI BORONG
Applicant
AND:
TING TANG (SIM)
Respondent
TRIBUNAL: Mr P.R Thompson
DATE: 14 August 2012
ORDER
- Judgment for the applicant in the sum of $200.00 in respect of cabinet & mirror which was in the room. Respondent allowed 28 days to pay.
- Counter claim to be dismissed.
………………………………..
Signed P.R Thompson
Member
REASONS FOR DECISION
On 14 August 2012 I made the orders set out above. These are the reasons for making the orders.
On 23 April 2012 Mr Borong Liu (the applicant) made an application to the ACT Civil and Administrative Tribunal (ACAT) for the resolution of a purported civil dispute.
The respondent to the application was named as Ting Tang.
The applicant claimed to have permission to sublet a room that he occupied in a house owned by a person identified as “Tony”. He wanted to sublet the room because he was going to China during the summer holiday. He agreed to sublet the room to the respondent.
They drew up and entered into a contract which was stated to be a “Short-Term Room Lease Contract” for the period 5 December 2011 to 12 February 2012. Both parties signed the contract.
In his application to the Tribunal, under the heading “Grounds for application”, the applicant stated the following:
“I definitely claimed that TANG, Ting cannot sublet my room to others without my permission; otherwise, he would get a fine of $600. Meanwhile, he must keep my room clean and tidy when he moved out. Lastly, because I was worry (sic) about my stuff inside might get stolen, I gave him a locker and told him that he must lock the door every time when he went out and moved about as well.
However, when I came back to my room on Feb. 18th, 2012, I found that the door of my room was opened and all my stuff was disappeared. Then, I looked around the house and I found some of them in rubbish bins, outside toilet, etc. Then my friend Dr. Zhou, Xuerong helped me to collect all my stuff which I found to his house. In the night, I checked them and found that I lost one badminton racket ($400), McDonalds’ working uniform ($100), wardrobe with mirror ($200), Floor –lamp ($100) and lots of small stuff, such as slippers, rick-cooker (sic) and drying rack, etc ($200). Lastly because he or that couple which he subleased to make my room really dirty and mixed, the landlord let me pay $200 for cleaning fee. However, according to the contract, I gave him with a very clean and tidy room, so when he moved out, he must keep the room clean and tidy as well, so I think he need to pay that cleaning fee. Therefore, in totally with all my lost, fine and cleaning fee, he should pay me $1800.”
Including costs of $46.00, Mr Liu applied to the Tribunal for an order requiring the respondent to pay him a total amount of $1860.00 on the basis that the respondent subleased his room to other people without the applicant’s permission and that the respondent, or the couple that he subleased to, failed to properly secure the room, leading to the applicant’s goods being stolen. The applicant also listed as a reason for his claim, that the respondent or the couple referred to above, made his room really dirty and “mixed.” I was unable to determine what he meant by “mixed”.
Attached to the application was a certified copy of the contract and what was claimed to be an English translation of that document, showing that it was signed and dated by the parties on 28 November 2011. For the sake of completeness and because it forms the basis of the applicant’s claim, the contract, as exactly translated, is set out in full below.
Short -Term Room Lease Contract
Lessor (hereinafter referred to as Party A): LIU, Borong
Tenant or tenant of the authorized person (hereinafter referred to as Party B): TANG, Ting1. The rent for this room is: $10 per week for the 1st week, $130 per week for the 2nd week to the 4th week, and $150 per week for the 5th week to the 10th week. Rent includes all costs, such as electricity, gas, and the internet. According to both parties agreed rental days, the total rent of $1300.
Notes: Party B needs to make a one-time payment of the full rent $1300 to Party A; after receiving the full payment of rent, Party A needs to provide a valid receipt to Party B. However, if Party B occurs as following situations: 1). If Party B does non-normal use of or abuse of electricity, Party A has rights to ask for extra money. 2). If Party B wants to use the home-phone in the house; he needs to pay extra money.
2. The tenancy of this room is 10 weeks; according to Party A and B discussed, the days are from 5th December 2011 to 12th February 2012.
Notes: For the money which Party B has already paid to Party A, if Party B wants to move out early, Party A will not give the money back.
3. Party B promised to Party A that this room is for residential use only (one Person-Party B for first four weeks, two people –Party B and his girlfriend for remaining six weeks)
.
Notes: Without Part A’s permission, Party B cannot change function of the room, cannot sublet or share with others (sic) people: Party A has the right to ask for 4 weeks rent for fine when Party B is found to be violating any stipulation above.
4. When the tenancy is finished, Party A has the right to take back the room and Party B should give the key back on time.
Note: If Party B wants to relet the room, he needs to ask Party A in writing 4
weeks before the tenancy finished. Party A and B need to re-sign the
Contract if Party A agrees to the releting. Meanwhile, Party B must keep the room clean and tidy when he gives the room back to Party A. If the room is dirty, Party A has the right to ask for cleaning fee.
5. If the house and facilities are damaged because of the improper use, Party B shall promptly pay for the costs of repair or economic compensation.
6. In the process of the rental contract, if additional clauses are needed, Party A will add and sign on the back of this contract. Party B shall not alter or forge
Party A’s Name: LIU. Borong Party B’S Name: TANG, Ting
Underneath these names were other personal details and the date it was signed.
Also attached to the application were six photocopied photographs of property and/or items that the applicant said were “lost” whilst he was absent overseas. These photocopies were of a readable quality but were not date stamped.
On 15 May 2012, the Tribunal’s Registrar made an order authorising the service of the original application and supporting documents on the respondent by email as well as by post to the address of the respondent.
The Tribunal’s file contains a response and counterclaim signed by Ting Tang on 27 May 2012. The document has not been date stamped by ACAT, nor does it appear to have been served on the applicant. In the space provided for the respondent’s details, the name “Sim” has been added in brackets. Attached to the document was another document headed ‘Short term lease agreement’ together with three receipts. I understand that Mr Tang uses the name “Sim” as his first name.
The respondent’s grounds for disputing the claim and his counterclaim are set out in full below, with spelling and grammatical errors included as originally typed.
Disputed Claim
I dispute the applicant’s claim on the following grounds:
1. Permission to sublease.
The applicant’s (sic) (Liu, Borong) said ‘I got the permission from the landlord that I could sublease my room because I went back to China during the summer holiday.’ I think he is lying, the reason is as below:
On the day I signed the contract, I asked him if I could contact the landlord, but he refused by saying ‘the owner will never find out’. When I moved in, one of the roommates told me he did not pay the rent for that month (Dec 2011), and I was so upset. After I subleased the room to Lisa and Steve, I met the landlord (Tony) knowing that Tony never knew him (Liu, Borong), and he never pays the rent to Tony directly. How could he get the permission from landlord?
According to Canberra’s renting law, he (sic) was illegal to sublease to me first of all without written consent from landlord.
2. Violation of contract for sublease.
I did ask him if I can rent it to others if I found my permanent residence, since he knew I am new to Australia (arrived late Oct.2011) and was searching for long rent. He agreed but not wrote in the contract.
I was so eager to rent his room and was not serious about the contract considering the informality (in Chinese). On the other hand, I was forced to sign this contract by him based on his absurd excuse, “The contract served as a powerful proof to refuse another Korean applicant who wanted his room badly. Later I found the excuse quite ridiculous,” Does it make sense to show a Korean guy a Chinese contract rather than an English one?’
I decided to sublease the room to others because I found my long term rent and I wanted to make up the big loss from this one (I only charged $130 pw for Lisa and Steve, while I was paying Liu $150 pw). I did want to tell him for politeness, but gave up for the fine in contract. I assumed everything would be fine as long as he paid his rent to Tony on time.
3. Reasons for lost items
When I sublease the room to Lisa and Steve, I mentioned that in our contract to keep the room clean and the items untouched. On the day they were happy to accept. On the day they (Lisa and Steve) moved in, the room was clean and Liu’s belongs (sic) was intact.
One day after they moved in (Jan 2012), Lisa phoned me out to meet Tony for the trouble caused Liu Borong without paying the rent (He was in the habit of not paying rent on time). Tony was very angry and threatened me to give back bonds and rent to Lisa and Steve so that he could pay him. Considering the situation, I was so frightened and agreed to pay back. I contacted (sic) with Liu Borong later, and finally he paid his debts ($100 per week, while he charge me with $150 per week).
On the moving day (12th Feb 2012), I was in airport to see my wife off, and Tony threatened me to pay back Lisa’s bond immediately by phone. I asked the permission to wait, but again he blackmailed me to throw out the stuff within the room. I had no choice but asking (sic) my friend (Gaofeng Zhou) to pay them back the bond without checking the stuff inside, which may lead to the loss of items. The room was cleaned when I arrived in the afternoon, and the Liu’s stuff had been moved since the landlord let the whole house out to other tenants just before. I phoned Tony on that day about stuff belonged to Liu, his answer was, ‘Ask him to phone me before coming.” After that I returned the key to Liu’s girl friend as he told me to and I told her to call Tony before he came back.
The lock he gave me is to lock my properties when I moved in as the profit of paying all the money at once, i.e. $1300. Apart from that I can remember is to lock the front door everytime going out.
If Liu Borong paid rent on time, Tony probably would not re-rent the house. If Tony waited me on that day, I would have checked the room before Lisa and Steve left at least. I did concern about Liu’s properties (sic), but I am not responsible for looking after his belongings both according to the contract and considering the rent I already paid.
Furthermore how should I do this in common Aussie house which does not have an inner lock?
4. Cleaning fee.
By imposing $200 on me, Liu Borong is really absurd. This dispute is between him and Tony (landlord), to resolve it in light of their original contract rather than to conflict with third party. Even if I was guilty, according to our illegal contract, I should only pay $50.
5. Negotiation
The price of wardrobe of Wardrobe Liu Borong claimed was $100 instead of $200 when we sat down to negotiate. I don’t know if he was trying to blackmail me about making up all the prices at this application.
Liu Borong listed the price up to $1000 on the day for negotiations. Our friends showed sympathy for his loss and suggested me to pay one hundred dollars to solve trouble since we are all international students, but nothing had been agreed on. Here again, he is making stories.
I do believe the main conflict is between Liu and the landlord. It was Tony who cleaned his room and relet the room to others resulting in his loss. His belongings was (sic) not stolen but robbed way obviously.
6. Complaints.
By the time I found that Liu Borong is dishonest, irresponsible, greedy and arrogant.
I was forced to sign the contract which is illegal itself.His lack of integrity brought me into this conflict with landlord and other people whom I would have met with peacefully and friendly.
I sympathise him for his loss and encounter. However, I am really not responsible for the whole incident directly. I paid the rent to him at once before hand and return the key in time as I should without any intension to put his property under risk.
I do suffer a lot in this affair threatened by both sides. Since I moved in his room, I did not enjoy one day peace. First the warming from the roommate for his unpaid rent, and then frequent upsetting calls from Lisa and Tony about his due payment issue which brought a great trauma to my life and to my family.
Counterclaim [and set off]
The following counterclaim and set off is made: $300.00
1. Telephone calls to Lisa and Tony about his unpaid rent issue: $50.
2. Internet connection and other communication fees to Liu Borong for resolving his debt issue: $50.
3. Spiritual undermining by both Lisa and Tony from phone call and meeting out $200.
The first of the receipts attached to the response was a receipt for $1,300 received by the applicant from the respondent, being the total rent payable for the applicant’s room for the period 5 December 2011 to 12 February 2012. The fee was stated to be inclusive of all bills for power, water, gas and internet services.
The second receipt was signed by Lisa (name removed) and was an acknowledgement for receiving $200 being a refund of bond monies received from Gaofeng Zhou.
The third and final receipt attached to the response was a receipt (numbered NO11725393862) for the sum of $427.00 transferred from the applicant’s account to the account of Mr Tuong Lee on 17 January 2012. The transaction description was stated to be an ‘Accommodation Fee.”
The short term lease agreement between the respondent, who is described in that document as Sim Tang, and his purported tenants, described as Lisa and Stephen, is in similar terms to the document drafted by the applicant. The only relevant parts of that document to these proceedings, is the renting period which was stated to be from 24 December 2011 to 12 February 2012, the details surrounding the bond of $200.00 paid by the tenants to the respondent, and a term giving consent to the tenants to use any utility in the room provided that no damages occurred.
The contract between the parties provided that the bond would be returned to Lisa and Stephen after they moved out on 12 February 2012 at which time the room would be inspected.
On 12 June 2012, the respondent Ting Tang filed a further Response disputing the applicant’s claims in full. The respondent’s grounds for disputing the claim were as follows:
1. I have no knowledge of the stolen items referred to by the applicant i.e. one badminton racket, McDonald’s work uniform, wardrobe with mirror, floor-lamp, and lots of small stuff such as slippers, rice –cooker and drying rack etc.
2. I do not believe the applicant had permission from his landlord to sublet his room to me because at the time of signing the ‘short –term room lease’ contract I asked the applicant if I could contact the landlord to which he responded ‘the owner will never find out’. Further, when I did meet the landlord, the landlord advised he did not know the applicant personally. On this basis, the contract is null and void because at no time did the applicant have the authority to sublet the room to me and to enter into a contract with me to that effect.
3. If the applicant can show that he had permission from the landlord to enter into a contract to sublet to me then I respond as follows:
a. Term 3 of the contract states that I must pay a ‘fine ‘of 4 weeks rent’ if I am found to be violating certain terms of the contract. I believe this term of the contract is a penalty term and is therefore not enforceable.
b. Term 4 states that I must pay $50.00 as a cleaning fee if the room is dirty. No evidence has been provided by the applicant that the room was dirty. Nor has a receipt been provided for the cost of having the room cleaned. I will not pay the sum of $50.00 as per the contract or the sum of $200 as demanded by the applicant.
In this response the respondent made no counterclaim or set-off.
On 20 June 2012, the parties were advised that the matter was set down for a preliminary conference before the registrar on 9 July 2012. On that date a registrar made the following order and direction.
1The matter is adjourned for hearing on 31 July 2012 at 2.00pm.
Directions:
1. The applicant is to file and serve a list of all items claimed together with evidence of replacement cost (internet pages, store photos, receipts will be sufficient) within 14 days.
The applicant did not comply with the direction.
On 19 July 2012, at the request of the applicant, the hearing set for 31 July 2012 was vacated and a new hearing set for 14 August 2012.
On 14 August 2012, the matter came on for hearing before me. The applicant gave oral evidence in support of his application. The respondent gave both oral and written evidence disputing the claims made against him. The respondent’s wife, who for a period also resided in the room purported to be sublet to the respondent, also gave oral evidence.
The evidence given by the applicant for the most part mirrored the statements set out in his original application. During the course of the proceedings he handed up photocopied photographs of replacement items with price tags, and other documents in support of his claims for damages for the loss of his possessions.
Mr Liu confirmed that because he was travelling to China, he entered into a contract with the respondent to sublet his room for the period 5 December 2011 to 12 February 2012. After initially being adamant that he had the landlord’s permission to sublet the room, he eventually conceded that in fact he only had the “permission” of a fellow occupant of the house.
Mr Liu was also adamant that his contract with the respondent was legally binding and enforceable between the parties and that the provisions of the contract covered his personal goods left in the room when he sub-let it. He argued that the respondent was a bailee of his goods and that he had trespassed on those goods. For reasons stated below, I rejected those arguments.
The applicant claimed that he gave a “locker” to the respondent together with firm instructions to lock the door when he went out or moved about the house.
On further questioning, it became apparent that the “locker” was a padlock as depicted in one of the photocopied photographs.
Mr Liu said that when he returned to the premises and his room on18 February 2012, the room was open and his goods were gone. He later found some of his goods in the rubbish bin and in other places around the house. The documents supplied in the hearing related to the items that were not recovered and included costings for their replacement.
Mr Liu said that he reported the matter to the police who, he said, told him that it was a civil matter. He then instituted these proceedings.
Mr Tang’s evidence was basically as set out in his two responses and the statement tendered by him at the hearing (Exhibit “B”). In summary, he said that he had entered into a contract with the applicant for the sublease of a room in premises owned by someone who was not a party to the contract.
Mr Tang maintained that the only instruction given to him by the applicant in respect of the personal belongings left in the room was, “don’t touch my stuff.”
Mr Tang and his wife both said that the goods were still in the room when they sub-let it to another couple. They both denied Mr Liu’s assertion that they had stolen and then sold his possessions.
Initially, the respondent was happy to have found accommodation. He became concerned when, even though he had paid all the rent, he was told by a fellow occupant that the applicant had not paid rent to the landlord for part of the period covered by him.
In his oral evidence, the respondent said that the applicant had given him a padlock as a reward for paying all the rent up front. The lock was given as a gift. This was the “locker” referred to by the applicant. He said however, that the lock could not be used to secure the room itself, nor could their bedroom door be locked.
The respondent offered to return the padlock to the applicant during the proceedings. His offer was declined.
During the hearing, the respondent produced two statements in support of his case. One statement was said to be from a Mr Shijiang Cao, a friend of the applicant. The second statement was made by the respondent himself. In it he set out the circumstances surrounding the room being cleaned out before he attended the premises on 12 February 2012.
Both statements were accepted, despite an objection being raised by the applicant. The statements were subsequently marked Exhibits “A” and “B”
Exhibit “A” is reproduced in full below as typed:
Statement
I companied Ting Tang and Gaofeng Zhou (a friend of us) to (address of rented premises) to get Ting’s fridge on 12 Feb. 2012. When we got there, the room was cleaned and not much furniture inside. The landlord was not there, but a Vietnamese inside who was in charge of the house told us the landlord took all the furniture including the fridge away in his van. So Ting called the landlord to confirm his fridge safe and rescheduled with landlord to get his fridge the other day.
I declare that the above is what I saw and heard on the day.
(Signed) Shijiang Cao.
(Address and phone number supplied but suppressed.)
Exhibit “B’
For the lost property
What happened on Feb 12th 2012 is I received a call (12.00pm) from Tony (landlord) who asked me to return the bond =$200 to Lisa and Steve since they needed them to move out. But I was in Sydney, I said I need three hours to hurry back, but he would not agree since he wanted to relet his house out on that day. Instead he threatened me by saying, “if you do not return the money before 2.00pm, I will throw all things inside the room, so I had to ask my friend Gaofeng Zhou to go to the house and pay for me for $200.
When I hurried there to look, the room was cleaned, nothing inside, my only furniture-bar fridge was found nowhere, the Vietnam guy who re-rent the house asked me to call Tony. I called to know that he had taken way all the stuff in room by his van including my fridge, and he told me two things: one is to return my fridge on the next day 6.00pm (He said he was outside town), the other is for me to inform Liu Borong that he need to call him (Tony) before coming.
(Signed) Ting Tang.
The respondent maintained that he was at all times willing to ensure that the room was left in a clean and tidy state at the conclusion of the sub-lease between him and the couple who vacated the room on 12 February, as per the conditions of that contract. It was only the actions of the owner as outlined in Exhibits “A” and “B” that precluded him from doing so.
It was the respondent’s contention that the owner had possession of the applicant’s goods, not he or his wife, as the owner also had taken possession of the fridge left by him in the room. There was no suggestion or evidence for that matter, that Lisa” or “Tony” had taken anything from the room.
In the main, I found the evidence given by the applicant to be unreliable and that he was evasive when answering some of the questions asked by me. On the other hand, the respondent and his wife appeared to be truthful and forthcoming in their evidence and in their answers to my questions. Their evidence was preferred.
It is clear from the evidence that the applicant’s status was that of an occupant of the premises under that definition in the Residential Tenancies Act 1997, which is set out in Part 5A of the Act.
There is no provision in the Act that allows an occupant to grant a right of occupation to another person under what would be termed an occupancy agreement, and certainly not in the absence of the express consent of the owner.
No such consent was presented and in fact, the evidence of the parties confirmed that at the time of the attempted sublease between the parties, the owner and the applicant had never met. If Mr Liu had a written agreement of his own with the owner, it was not admitted into evidence.
The respondent was, on his own admission, well aware that the applicant did not have the owner’s permission to sub-let the room because the applicant told him that “the owner would never find out.”
Whether the applicant told him that he could or could not sub- let the room is immaterial, as neither party had such a right without the express written approval of the landlord.
Both the applicant and the respondent were motivated by a desire to avoid financial loss when they drew up contracts that purported to confer on others, a right that they had no legal authority to confer. Both contracts were, in my opinion, unenforceable and illegal.
During the course of the proceedings, the applicant sought to rely on the laws of contract, bailment and trespass in order to establish that the respondent was in some way responsible for the loss of his possessions and as a result, should be liable for damages.
The contract itself, even if enforceable, only provides that “If the house and facilities are damaged because of the improper use, Party B shall promptly pay for the costs of repair or economic compensation.” (clause 5)
That clause is quite specific. Despite the applicant’s assertions to the contrary, it cannot be interpreted to include responsibility for the applicant’s personal possessions. After severing all other clauses in the contract, I did however rely on that clause to award the applicant $200 for his missing cabinet and mirror as those items could be considered to be “facilities” used by the respondent.
A bailment arises when one person is voluntarily and knowingly in possession of the goods of another. However, the facts in this case point more to an involuntary bailment, which arises where the possession of goods is imposed on a person without that person’s consent. In such a case, the involuntary possessor is aware both of the fact of possession and of the fact that he is not the owner, but gives no consent to possession. (see Property Life Insurance Ltd v Edgar unreported, NZSC, Mahon J, 15 March 1980).
It has been held that an involuntary bailee owes no general duty of reasonable care to safeguard the goods against loss, theft or damage. (see Lethbridge v Phillips (1819) 2 Stark 544).
In any event, it was the applicant’s own actions in not returning to his previously rented room until 18 February 2012, some six days after the room had been vacated and subsequently cleaned and relet by the owner; that directly led to his loss of possession of his personal property.
The contract between the parties provided that “When the tenancy is finished, Party A has the right to take back the room and Party B should give the key back on time”.
Mr Tang’s purported tenancy or occupancy of the room was intended to end on 12 February 2012. Just who the applicant intended to be looking after his personal possessions after that date, was never explained.
There was no evidence presented to the Tribunal that the applicant or anybody on his behalf, paid rent to the owner for the room in question between the period 13 to 18 February 2012. If that was indeed the case, then the owner was entitled to deal with the applicant’s possessions under the Uncollected Goods Act 1996.
Even if the contract between the applicant and the respondent had been lawful and enforceable, certain provisions would have been considered unenforceable. The applicant sought to include in that contract, several terms that can only be categorized as penalty clauses.
Simply put, a penalty clause is a clause that purports to impose a penalty to coerce one party into complying with its obligations under a contract. In AMEV-UDC Finance Ltd v Austin (1986) 162 CLR 170 it was stated that if a clause is characterized by the court as a penalty, the clause will be ignored and damages will be assessed under the normal principles and further, that a penalty provision is unenforceable or, perhaps void ab initio.
The provision in the contract giving the applicant a right to seek four weeks’ rent as a fine for any perceived violation of the terms of the contract, including the term prohibiting subletting, is clearly a penalty clause and as such is unenforceable. The $50 payable as a cleaning fee if the room was found to be dirty is in the same category and hence, also unenforceable.
It does not necessarily follow that the applicant was not entitled to seek re-imbursement from the respondent for any loss suffered by the applicant as a result of the room being left dirty.
However, the applicant’s claim for $200.00 from the respondent as re-imbursement for a cleaning fee allegedly paid by him to the owner of the premises was not allowed. First, there was no evidence before me that that amount had been paid by the applicant. He produced no receipt. Secondly, I believe that this was a matter between the owner and the applicant, as was the matter of the whereabouts of the applicant’s personal belongings.
Basically, Mr Liu was unable to substantiate his claim and the reason why he would pay such an amount to the owner, and in what circumstances, remained unclear. I ordered judgment for the applicant in the sum of $200.00 for the reasons set out above. I also dismissed the respondent’s counter-claim on the basis that his claims either had no merit, were unsubstantiated, or related to expenses incurred by him that were not recoverable in this jurisdiction.
In his written request for the reasons for my decision, Mr Liu asked that my reasons address why “the tort of trespass in goods” did not apply in his case.
The tort of “Trespass to Chattels” as defined by Thomson Reuters (Professional) Australia in their legal online service, is committed by an act of a defendant which directly infringes a plaintiff’s possession of a chattel, where the defendant intended that result, or should have foreseen it.
However, in an action for trespass to chattels, a plaintiff must be in actual possession of the chattel at the time of the defendant’s act.
In this case, on the facts presented by the parties and accepted by me, there was no evidence that the respondent did anything to directly infringe on the possession of any goods in the possession of the applicant. The goods were certainly not in the possession of the applicant when they went “missing” and the tort simply does not apply.
Similarly, on the evidence I rejected Mr Liu’s assertions that the respondent had either stolen or sold his goods.
………………………………..
Mr P.R Thompson
Member
PUBLICATION DETAILS
TO BE PUBLISHED
PART A
FILE NUMBER: | XD 12/518 |
PARTIES, APPLICANT: | Borong Liu |
PARTIES, RESPONDENT: | Ting Tang |
COUNSEL APPEARING, APPLICANT | N/A |
COUNSEL APPEARING, RESPONDENT | N/A |
SOLICITORS FOR APPLICANT | N/A |
SOLICITORS FOR RESPONDENT | N/A |
TRIBUNAL MEMBER: | Mr P.R Thompson |
DATES OF HEARING: | 14 August 2012 |
PLACE OF HEARING: | ACAT, Canberra |
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