Pomeroy v Thwaites Witham & Krantz No. DCCIV-98-716 Judgment No. D80 - [1999] SADC 80

POMEROY v THWAITES WITHAM PTY LTD & KRANTZ

[1999] SADC 80

Judge Lowrie
Civil

1 The plaintiff commenced this action against the first defendant land agent, and, the second defendant the owner of a home unit at 11 William Street, Burnside in which the plaintiff was formerly a tenant claiming damages against both parties for what the plaintiff alleges were wrongful acts concerning the seizure and/or sale of the plaintiff’s goods which were left in the premises following her eviction.
2 The plaintiff assessed her loss in the sum of $33,744.70. The alleged wrongful acts took place in June 1991, and, consequently the plaintiff sought an order for an extension of time in which to bring her proceedings pursuant to section 48 of the Limitation of Actions Act 1936. The grounds she alleged for such claim were stated as:
"(a) the plaintiff did not ascertain until July 1997 that Roger Kearns, auctioneer and valuer, was of the opinion that certain of the plaintiff’s goods were valued at $27,760.00;
(b)   the plaintiff did not ascertain until October 1997 that Ernsmiths were prepared to replace certain of the plaintiff’s good for $3689.70;
(c)   On 27th October 1997 the plaintiff ascertained for the first time that the defendants would not consent to her application to the Tribunal dated 4th August 1992 being re-instated; and
(d)   On 6th November 1997 the plaintiff ascertained for the first time that the defendants would not consent to the jurisdiction of the Residential Tenancies Tribunal to hear a claim by the plaintiff where the claim exceeded $25,000.00;"
3 The defendants deny the relevant allegations. The defendant agent claims all of its actions were proper and it had at all times acted in accord with orders of the Residential Tenancies Tribunal.
4 Both defendants denied because of the factual background that the matters as pleaded could not amount to "material facts" within the meaning of the section.
5 The matter came on for hearing on 7 April, 1999, on the plaintiff’s preliminary application seeking an order to extend the time in which to bring her claim.
6 The plaintiff gave evidence as well as her former solicitors, Mr Harley, Mr Bowler and Mr Baldock. The hearing of the matter was completed on 27 May, 1999.

EVIDENCE
7 The plaintiff confirmed that she occupied a flat at 11 William Street, Burnside which she had rented from the agents, L J Hooker at Kensington, a business operated by the first defendant. The plaintiff described the flat as a "single bedroomed home unit". She thought the rental was $90 and the lease was for six months. The plaintiff agreed that she had fallen behind in her rental payments. She said that during that time she had received from the agents what she called "a little notice" requesting her to pay and on receiving that notice she said she paid her rent.
8 However, she said she left the unit after she received a letter from the Residential Tenancies Tribunal advising her that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Pomeroy v Thwaites Witham & Krantz No. DCCIV-98-716 Judgment No. D80 [1999] SADC 80
Case: [1999] SADC 80
Decision Date: 10 June 1999

CaseChat Overview and Summary

The plaintiff, Pomeroy, brought an action against the first defendant, a land agent, and the second defendant, the owner of a home unit, for damages relating to the seizure and sale of her goods left in the premises following her eviction. The plaintiff sought an extension of time to bring her proceedings under section 48 of the Limitation of Actions Act 1936, claiming that she did not become aware of certain facts until late 1997, which she argued justified the extension. The defendants denied the allegations and argued that the plaintiff was aware of the relevant facts well before the statutory period expired.

The court had to decide whether the plaintiff's claim for an extension of time was justified under the Limitation of Actions Act 1936. Specifically, the court needed to determine if the facts the plaintiff claimed to have discovered late were "material facts" within the meaning of the Act, and if it was just and expedient to grant the extension. The court also had to consider the plaintiff's awareness of the value of her lost goods and her efforts to quantify her loss over the years.

The court found that the plaintiff had been aware of the value of her lost goods since 1992, and had sought legal advice and valuations from various sources, including a licensed valuer. The court noted that the plaintiff's claim for damages was consistently around $45,000, and she had been advised on the proper basis for her claim, which was the market value of her goods rather than the retail cost. The court held that the valuation obtained in July 1997 was not a "material fact" because the plaintiff was already aware of the variance in figures and had been debating the true measure of her loss. The court also found that the defendants' refusal to consent to the jurisdiction of the Residential Tenancies Tribunal was not a basis for an extension, given the plaintiff's awareness of the Tribunal's jurisdictional limit. The court concluded that it was not just and expedient to grant the extension of time, as the plaintiff had failed to institute proceedings within the statutory period despite having the necessary information and legal advice.

Orders