Sullivan v Doherty - [2020] SASC 13

SUPREME COURT OF SOUTH AUSTRALIA
(Appeals to a Single Judge: Civil)
SULLIVAN v DOHERTY
[2020] SASC 13
Judgment of The Honourable Justice Blue
5 February 2020
ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - STATUTORY APPEALS FROM ADMINISTRATIVE AUTHORITIES TO COURTS
LANDLORD AND TENANT - RESIDENTIAL TENANCIES LEGISLATION - RECOVERY OF POSSESSION
The appellant filed an application in the South Australian Civil and Administrative Tribunal for return of goods treated by the respondent as abandoned goods. A Member dismissed the application. A Senior Member dismissed the appellant’s application for review of that dismissal.
The appellant was the tenant under a residential tenancy agreement for 12 months ending on 24 March 2018 at a rent of $600 per fortnight. The Member found, and the Senior Member affirmed, that the parties agreed to an early termination of the tenancy on 27 February 2018. On 2 March 2018 the appellant attended at the premises to collect his possessions and was asked to leave the premises.
The Member found that, by telephoning the appellant’s mobile phone which did not answer several times, the respondent complied with the obligation in subsection 97B(4)(a) of the Residential Tenancies Act 1995 (SA) to make reasonable attempts as soon as practicable to notify him that valuable abandoned property had been found on the premises. The Senior Member reversed this finding, concluding that the respondent should have attempted to contact the appellant by email and text message.
The Senior Member however concluded that the respondent was not required to take those steps because the property was not “valuable abandoned property” within the meaning of the Act. The Senior Member said that on her assessment the likely value of the appellant’s items remaining at the premises would not have exceeded $5,800, which was the amount charged to the respondent by Northern Vehicle Recovery for removal and storage of various possessions of the appellant.
The appellant contends that the Senior Member erred in making her assessment of value, including on the ground that there was no evidence capable of supporting that assessment, and that he was denied procedural fairness because the contention that his possessions were not valuable property was never put to him by the respondent or the Tribunal. He also contends that the Senior Member erred in failing to find that he was entitled to recover his possessions remaining on the premises when he attended on 2 March 2018.
The respondent contends by way of alternative contention that the Senior Member erred in overturning the Member’s decision concerning compliance with section 97B(4)(a). She also contends that permission to appeal should be refused because the appeal is not reasonably arguable, her alternative contention cannot reasonably be resisted and the value of the appellant’s possessions being the subject matter of the appeal is not of sufficient substance to justify consideration.
Held:
1. Permission to appeal should be granted (at [70]).
2. The Senior Member erred in making a finding about the value of the appellant’s possessions because the evidence was incapable of supporting such a finding (at [92]-[101]).
3. The appellant was denied procedural fairness because the contention that his possessions were not valuable property was never put to him and was not an issue in the proceedings in the Tribunal (at [105]).
4. The respondent was not entitled to refuse the appellant’s request on 2 March 2018 to reclaim his possessions because he did not pay reasonable costs incurred by her in dealing with them under the Act because she did not inform him of the amount or calculation of those costs (at [135]).
5. The Senior Member correctly found that the respondent did not comply with her obligation under section 97B(4)(a) (at [146]).
6. Permission granted and appeal allowed; the parties to be heard about the orders to be made for the disposition of the appeal (at [147]).
Residential Tenancies Act 1995 (SA) ss 97, 97A, 97B; South Australian Civil and Administrative Tribunal Act 2013 (SA) ss 39, 43, 70, 71, referred to.

SULLIVAN v DOHERTY
[2020] SASC 13
BLUE J:

The appellant Mr Sullivan filed an application in the South Australian Civil and Administrative Tribunal for return of goods treated by the respondent, Julie Doherty, as abandoned goods. A Member dismissed the application (the Member’s decision). A Senior Member dismissed Mr Sullivan’s application for review of that dismissal (the Senior Member’s decision).
Mr Sullivan appeals and seeks permission to appeal against the Senior Member’s decision.
Mr Sullivan was the tenant under a residential tenancy agreement for 12 months ending on 24 March 2018 at a rent of $600 per fortnight. The Member found, and the Senior Member affirmed, that the parties agreed to an early termination of the tenancy on 27 February 2018. On 2 March 2018 Mr Sullivan attended at the premises to collect his possessions and was asked to leave the premises.
The Member found that, by telephoning Mr Sullivan’s mobile phone which did not answer several times, Ms Doherty complied with the obligation in subsection 97B(4)(a) of the Residential Tenancies Act 1995 (SA) (the Act) to make reasonable attempts as soon as practicable to notify him that valuable abandoned property had been found on the premises. The Senior Member reversed this finding, concluding that Ms Doherty should have attempted to contact Mr Sullivan by email and text message.
The Senior Member however concluded that Ms Doherty was not required to take those steps because the property was not “valuable abandoned property” within the meaning of the Act. The Senior Member said that on her assessment the likely value of Mr Sullivan’s items remaining at the premises would not have exceeded $5,800, which was the amount charged to Ms Doherty by Northern Vehicle Recovery for removal and storage of various possessions of Mr Sullivan.
Mr Sullivan contends that the Senior Member erred in making her assessment of value, including on the ground that there was no evidence capable of supporting that assessment, and that he was denied procedural fairness because the contention that his possessions were not valuable property was never put to him by Ms Doherty or the Tribunal. He also contends that the Senior Member erred in failing to find that he was entitled to recover his possessions remaining on the premises when he attended on 2 March 2018.
Ms Doherty contends by way of alternative contention that the Senior Member erred in overturning the Member’s decision concerning compliance with section 97B(4)(a). She also contends that permission to appeal should be refused because the appeal is not reasonably arguable, her alternative contention cannot reasonably be resisted and the value of Mr Sullivan’s possessions, being the subject matter of the appeal, is not of sufficient substance to justify consideration.
Background
Mr Sullivan and Ms Doherty each gave evidence before the Member. A transcript of that evidence has not been produced. Certain documents were produced to the Member (analogous to exhibits). The Member made only limited primary factual findings.
Mr Sullivan and Ms Doherty each gave evidence before the Senior Member. A transcript of that evidence was produced for this appeal. Certain documents were produced to the Senior Member (analogous to exhibits). The Senior Member made no primary factual findings beyond those made by the Member.
The facts set out below are based on factual findings made by the Member, the documents produced to the Member or Senior Member, the transcript of the hearing before the Senior Member and matters that appear to be common ground based on the decisions of the Member or Senior Member or the transcript of the hearing before the Senior Member or the conduct of the appeal before me.
In March 2017 Mr Sullivan and Ms Doherty entered into a written residential tenancy agreement relating to a property at Wasleys (the premises). The premises comprised a farming property including a house, sheds and grounds. The tenancy was for a fixed term of 12 months commencing on 25 March 2017 and ending on 24 March 2018. The rent was $300 per week payable in advance. However, the parties apparently acted on the basis that the rent was payable by fortnightly payments of $600 in advance.
On 16 November 2017 a member of the Tribunal made orders on the application of Ms Doherty. Order 1 required payments totalling $1,857[1] by 4 December 2017. Order 2 required Mr Sullivan to make fortnightly payments of $700 commencing on 18 December 2017 until the rent was two weeks in advance (ie, $100 per fortnight was to go towards arrears). Order 3 provided that, if Mr Sullivan missed any payment required by order 2 before 27 February 2018, Ms Doherty may make a written request to the Tribunal for an urgent hearing to terminate the tenancy and evict Mr Sullivan. Order 5 provided that, if Mr Sullivan missed any payment required by order 2 after 27 February 2018, Ms Doherty may lodge an application seeking an order terminating the tenancy without first serving a notice of termination. Order 4 provided amongst other things that, if the term of the tenancy expired during the payment plan created by the order, the payments were to continue up until the date of the expiry of the tenancy.
[1] Dollar figures are rounded down to the nearest whole dollar.
In February 2018 Mr Sullivan decided to move out of the premises before the tenancy end date of 24 March 2018. He communicated that intention to Ms Doherty.
On 7 February 2018 Ms Doherty had a telephone conversation with Mr Sullivan during which he said that the house would be empty by 12 February.
On 12 February 2018 a fortnightly payment of rent in advance was due and it was paid by Mr Sullivan (the date of payment was not identified but it must have been before 26 February at the latest). He was up to date with his rental payments at that point.
On 20 February 2018 Ms Doherty had a telephone conversation with Mr Sullivan. She requested access for her agent to show a prospective tenant through. Mr Sullivan said that the house was ready for inspection now, so that would be okay, and the rest of his belongings would be out by 25 February.
By 26 February 2018, Mr Sullivan had moved himself and his possessions out of the house but had not removed many of his possessions from the grounds or sheds. A fortnightly payment of rent was due on 26 February and was not paid by that date.
On 27 February 2018 at 9.24 am there was a telephone conversation between Mr Sullivan and Ms Doherty. Mr Sullivan gave evidence before the Member that he told her that the house was ready for inspection but he needed about another week to move things from outside. He asked if she wanted the keys back. She told him to hang onto them until he had finished moving out.
Ms Doherty gave a different account of the conversation. Ms Doherty said that Mr Sullivan advised her that “the property” was ready for inspection. She reminded him that he was still liable for rent until she got a new tenant or the lease finished. He replied that he did not have any money and said that he might be able to pay something in two weeks when he got his Centrelink payment but it was not a concern of his. The Member accepted Ms Doherty’s evidence about the content of this telephone conversation in preference to Mr Sullivan’s evidence.
On 27 February 2018 later that day Ms Doherty attended at the premises. She found that there were still possessions of Mr Sullivan on the premises.
On 28 February at 10.41 am and 3.59 pm, Ms Doherty telephoned Mr Sullivan but there was no answer. Mr Sullivan did not have voicemail available on his phone.
On 1 March 2018 at 8.52 am, 1.04 pm and 5.09 pm, Ms Doherty telephoned Mr Sullivan but there was no answer.
On or before 1 March 2018 Ms Doherty engaged Rental Ready to clean and repair the premises. Their invoice stated that they commenced this work on 1 March and finished it on 3 March.
Between 1 and 3 March 2018 Rental Ready sorted and packed possessions of Mr Sullivan. According to their invoice, they returned two BOC gas bottles to the depot; assisted Northern Vehicle Recovery to load six vehicles onto their transport; and placed other materials in a nine cubic metre skip bin which they removed to a dump. They issued an invoice to Ms Doherty on 7 March charging $1,690 for this work.
On 1 March 2018 Ms Doherty applied to the Tribunal seeking an order for termination and vacant possession on the ground that Mr Sullivan had failed to comply with the Tribunal’s order made on 16 November 2017 and seeking compensation. She ticked the box showing that the tenancy agreement had not ended. She gave evidence before the Senior Member that she ticked boxes referring to termination and vacant possession and the tenancy not having ended because she was told to do so by Tribunal staff to whom she spoke. This was challenged by Mr Sullivan’s lawyer.
On 1 March 2018 Ms Doherty engaged Northern Vehicle Recovery to remove those of Mr Sullivan’s possessions that were not to be taken to the dump by Rental Ready.
On 2 March 2018 Northern Vehicle Recovery attended at the premises from 6 am and collected and transported five vehicles.
On 2 March 2018 at about midday Mr Sullivan went to the premises with his daughter with a car trailer to collect things and noticed that items were missing. He spoke to Ms Doherty’s maintenance person Paul. He was told to leave the premises. Paul spoke to Ms Doherty by telephone while Mr Sullivan was there. She asked Paul to request Mr Sullivan to call her after 4.00 pm.
On 2 March 2018 at 2.51 pm Mr Sullivan sent an email to Ms Doherty. He said that he had attended at the premises to retrieve the rest of his belongings per their verbal agreement made on 25 February. Paul asked them to leave the premises, which they did. He noticed that his belongings had been removed without his consent. Some of the vehicles did not belong to him and their owners wished them to be returned immediately. Since Monday he had had no correspondence from Ms Doherty and was working towards removing his belongings per their amicable agreement. As Ms Doherty was aware, his lease did not expire until the end of March. He was still in possession of the keys, which Ms Doherty did not want back until he had moved out and she was able to do a final inspection.
On 2 March 2018 at 3.31 pm Ms Doherty telephoned Mr Sullivan on 2 March but there was no answer.
On 3 March 2018 Northern Vehicle Recovery collected and transported one vehicle and a load of lawnmowers.
On 5 March 2018 Northern Vehicle Recovery collected and transported one “heavy load” and two “domestic loads” of various items. They issued an invoice to Ms Doherty dated 2 March 2019 charging $3,000 for the transport and $2,800 for storage for a minimum period from 1 to 30 March 2018.
On 5 March 2018 at 10.58 am and 1.54 pm Ms Doherty telephoned Mr Sullivan but there was no answer.
On 5 March 2018 Mr Sullivan filed an application in the Tribunal seeking return of his possessions. He said that all his materials from the shed and six cars had been placed in storage but he did not know where they were. He was a motor mechanic and did work on other people’s cars at the premises. The goods had a total value of about $40,000. He sought an urgent hearing. The application was listed for hearing on 9 March.
On 7 March 2018 Ms Doherty sent a letter to Mr Sullivan. She said that, after numerous attempts to contact him by telephone without success, she had no choice than to follow sections 97, 97A and 97B of the Tenancy Act in handling the abandoned property left at the premises. All abandoned property was removed from the site from 1 March 2018 and was currently being stored in a secure location. The amount of $7,689 was the actual cost incurred to sort the property, pack and remove it and store it for 28 days. Mr Sullivan could reclaim the goods within the 28 day time period by paying the actual costs incurred in full in dealing with the abandoned property. Unless that amount was paid and the goods were collected by 28 March, they would be forfeited.
On 9 March 2018 the Member heard Mr Sullivan’s application. As noted above, Mr Sullivan and Ms Doherty both gave evidence and both tendered documents. The Member reserved his decision.
On 22 March 2018 the Member emailed and posted his decision to the parties. He dismissed Mr Sullivan’s application.
Mr Sullivan applied for internal review of the Member’s decision under section 70 of the South Australian Civil and Administrative Tribunal Act 2013 (SA) (the Tribunal Act). He filed Tenant’s Grounds of Review and Ms Doherty filed a Landlord’s Response to Tenant’s Grounds of Review. He attached to it a list of items that he prepared on 8 March 2018 from memory as having been in the shed.
Ms Doherty produced to the Senior Member a letter signed by Mr Ryan on 18 May 2018 on behalf of Northern Vehicle Recovery stating that the items had been stored by Northern Vehicle Recovery until after Easter.
On 18 May 2018 the Senior Member heard Mr Sullivan’s application for review. A transcript of that hearing was obtained from the Tribunal for this appeal. The Senior Member gave permission for Mr Sullivan to be legally represented. The oath was administered to Mr Sullivan and Ms Doherty at the outset and from time to time during the course of the hearing they gave evidence on oath. The Senior Member heard evidence and submissions in relation to one issue that arose out of the grounds of review before moving on to the next issue. At the conclusion of the hearing, the Senior Member gave Ms Doherty an opportunity to make written submissions.
On 24 May 2018 Ms Doherty submitted written submissions. On 4 June Mr Sullivan’s lawyer submitted written submissions in reply.
On 14 June 2018 the Member emailed and posted her decision to the parties. She dismissed Mr Sullivan’s application for review.
The Member’s reasons for decision
The Member summarised the evidence and made limited factual findings. He concluded that Ms Doherty lawfully recovered possession of the premises on 27 February 2018. He said that Ms Doherty would have expected that Mr Sullivan had moved out on 25 February because that had been discussed in their 20 February conversation. This would have been reinforced by Mr Sullivan saying on 27 February that “the property” was ready for inspection. The Member concluded that, by those two conversations, Mr Sullivan indicated to Ms Doherty that he had given back vacant possession of the premises on 27 February and Ms Doherty lawfully recovered possession by going to the premises on that date.
The Member found that Ms Doherty complied with the obligation in subsection 97B(2) to allow access to Mr Sullivan to the premises to reclaim abandoned property within the period of two days after recovering possession because she telephoned him on multiple occasions on those days but received no answer.
The Member found that by 2 March 2018 Ms Doherty had decided to treat the goods as valuable abandoned property and so had incurred costs to remove and store the goods. He found that Ms Doherty complied with the obligation in subsection 97B(4) to make reasonable attempts to contact the tenant and take reasonable steps to keep the goods safe for 28 days. He did not give any reasons for concluding that Ms Doherty complied with the obligation in section 97B(4)(a).
The Senior Member’s reasons for decision

The Senior Member identified the first issue as “Was the landlord entitled to take back possession of the premises on 27 February 2018?” She concluded that the determination of the Member that Mr Sullivan had handed back possession of the premises to Ms Doherty on 27 February 2018 was correct and gave reasons for that conclusion.
The Senior Member identified the second issue as “Has the landlord made reasonable attempts to notify the tenant within 2 days of recovering possession that valuable abandoned property had been found on the premises?”
The Senior Member overturned the Member’s conclusion that Ms Doherty complied with subsection 97B(4)(a). She said:
In the original Order the Tribunal found that the landlord had complied with Section 97B(4) of the Act and had made reasonable attempts to contact the tenant and she had also taken reasonable steps to keep the goods safe until at least 28 days after recovering possession of the property.
I do not consider that the landlord made reasonable attempts to notify the tenant about her intentions in relation to the tenant’s possessions still remaining at the property. In circumstances where the tenant had previously communicated with her by email I consider that the landlord should have sent an email to the tenant. Further I note that the landlord did not attempt to communicate with the tenant by text message. I consider that she should have done that as well.
However, the Senior Member went on to conclude that Ms Doherty was not required to comply with subsection 97B. She said:
However, in my view the landlord was not required to make reasonable attempts to notify the tenant of her intentions in relation to the possessions still remaining at the property for the following reasons.
The landlord’s obligation to make reasonable attempts to notify a tenant of their intentions in relation to abandoned possessions applies only if those possessions must be treated as “valuable abandoned property” within the meaning of the Act. Section 97B of the Act states that possessions are valuable abandoned property if their value is more than a fair estimate of the cost of removal, storage and sale.
I accept the landlord’s evidence that she tried to arrange for a secondhand dealer to attend at the property to provide her with an appraisal but was unable to do so (due to the location of the property). I accept that the landlord has incurred costs of $5,800.00 for the removal and storage of the tenant’s possessions. I am not satisfied from the tenant’s evidence that the likely value of his possessions remaining at the property would have exceeded the amount of the removal and storage. I accept the landlord’s evidence that the possessions remaining at the property were of little value.
On my assessment the likely value of the tenant’s items remaining at the property would not have exceeded $5,800.00.
Therefore I conclude that the landlord was entitled to deal with the tenant’s possessions which remained at the property in accordance with Section 97B(3) of the Act and she was not required to comply with the requirements of Section 97B(4) of the Act in relation to valuable abandoned property, including the obligation to make reasonable attempts to notify the tenant of her intentions in relation to the items remaining there.
Contentions on appeal and application for permission to appeal
Mr Sullivan’s primary contention is that the Senior Member erred in finding that his possessions were not “valuable abandoned property” within the meaning of subsection 97B(4) of the Act. He advances this contention on four grounds:
1the Senior Member erred in finding that the likely value of his items remaining at the premises would not have exceeded $5,800 when the finding was not open to her and was not within the evidence presented;[2]
2he was denied procedural fairness because the contention was never put to him by Ms Doherty or the Tribunal;[3]
3Ms Doherty accepted by her conduct that the items were “valuable abandoned property” and is now estopped from submitting to the contrary;[4] and
4the Senior Member erred in the way she assessed the “value of the property” within the meaning of subsection 97B(3).[5]
[2]    Ground 1.
[3]    Ground 4.
[4]    Ground 3.
[5]    Ground 2 is expressed that the Senior Member erred in failing to find that his possessions remaining at the property were “valuable abandoned property” within the meaning of subsection 97B(4). However, he clarified during submissions that ground 2 was intended to raise the contention set out in the text.
Mr Sullivan’s alternative contention is that the Senior Member erred in failing to find that he was entitled to recover his possessions remaining on the premises when he attended on 2 March 2018, thereby denying him access to the premises to reclaim property contrary to subsection 97B(2a) and failing to permit a person entitled to possession to reclaim the property contrary to subsection 97B(5).[6]
[6] Ground 5.
Ms Doherty takes issue with each of these contentions. In the alternative, she raises an alternative contention that the Senior Member’s decision should be upheld for different reasons, namely that she erred in finding that Ms Doherty breached section 97B(4)(a).[7]
[7] I dispensed with the requirement that Ms Doherty file a notice of contention in accordance with rule 285 of the Supreme Court Civil Rules 2006 (SA) insofar as she advances this alternative contention.
Ms Doherty contends that permission to appeal should be refused because Mr Sullivan’s contentions on appeal are not reasonably arguable or alternatively her alternative contention cannot reasonably be resisted and hence the appeal (if permission were granted) would be bound to fail. In the alternative, permission to appeal should be refused because the subject matter of the appeal is not of sufficient substance to justify consideration.
On the hearing of the appeal, I received three affidavits from Mr Sullivan (except for one paragraph of his third affidavit). Ms Doherty contended that no weight should be accorded to Mr Sullivan’s evidence. Apart from describing the proceedings and exhibiting documents before the Tribunal, Mr Sullivan’s affidavits were mainly addressed to the value of his possessions.
Tribunal procedure, internal review and appeal
The conduct of hearings in the Tribunal is governed, amongst other things, by subsection 39(1) and section 43 of the Tribunal Act, which provide:
39—Principles governing hearings
(1)On the hearing of any proceedings, but subject to the provisions of a relevant Act—
(a)     the procedure of the Tribunal will, subject to this Act, be conducted with the minimum of formality; and
(b)     the Tribunal is not bound by the rules of evidence, may adopt, as in its discretion it considers appropriate, any findings, decision or judgment of a court or other tribunal (insofar as may be relevant to the proceedings before the Tribunal), and may otherwise inform itself as it thinks fit; and
(c)     the Tribunal must act according to equity, good conscience and the substantial merits of the case and without regard to legal technicalities and forms.
43—Practice and procedure generally
(1)The Tribunal is to take measures that are reasonably practicable—
(a)     to ensure that the parties to any proceedings have a reasonable opportunity to understand the nature of the matter under consideration; and
(b)     to ensure that the parties to any proceedings understand the nature of any assertions made in the proceedings and the legal implications of those assertions; and
(c)     to explain to the parties, if requested to do so, any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal; and
(d)     to ensure that the parties have the opportunity in any proceedings to be heard or otherwise have their submissions received.
(2)The Tribunal—
(a)     is to take all practicable steps to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all the relevant facts in issue in any proceedings; and
(b)     may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument; and
(c)     may limit the time available for presenting the respective cases of parties before it at a hearing to an extent that it considers would not impede the fair and adequate presentation of the cases; and
(d)may require a document to be served outside the State; and
(e)     may adjourn any proceedings at any time and to any place (including for the purpose of enabling the parties to negotiate a settlement or for the purpose of reconsideration of a decision by the decision‑maker); and
(f)may proceed to hear and determine proceedings in the absence of a party.
(3)To the extent that the practice or procedure of the Tribunal is not prescribed by or under this Act or a relevant Act, it is to be as the Tribunal determines.
The approach of the Tribunal to an internal review under section 70 of the Tribunal Act is governed by subsections (4), (5) and (6), which provide:
(4)On a review, the Tribunal will examine the decision of the Tribunal at first instance on the evidence or material before the Tribunal at that time but the Tribunal may, as it thinks fit, allow further evidence or material to be presented to it.
(5)The Tribunal must, in acting under this section, reach the correct or preferable decision but in so doing must have regard to, and give appropriate weight to, the decision of the Tribunal at first instance.
(6)The Tribunal may, on a review under this section—
(a)     affirm the decision that is being reviewed; or
(b)     vary the decision that is being reviewed; or
(c)     set aside the decision being reviewed and—
(i)substitute a new decision; or
(ii)return the matter to the Tribunal as constituted at first instance for reconsideration in accordance with any directions or recommendations that the Tribunal acting on review considers appropriate.
The review is essentially an appeal by way of rehearing with a discretion to admit further evidence.
The approach of the Court to an appeal under section 71 of the Tribunal Act is governed by subsections (3a), (3b) and (4), which provide:
(3a)An appeal under this section will be by way of rehearing.
(3b)The Supreme Court may, in conducting an appeal, draw inferences of fact from evidence or material before the Tribunal and may, as it thinks fit, allow further evidence or material to be presented to it.
(4)The Supreme Court may, on an appeal under this section—
(a)     affirm the decision appealed against; or
(b)     vary the decision appealed against; or
(c)     set aside the decision appealed against and, if it thinks fit, return the matter to the Tribunal for reconsideration in accordance with any directions that the Court considers appropriate.
The appeal is by way of rehearing with a discretion to admit further evidence.
Abandoned property regime
Division 7 of Part 5 of the Act is entitled “Abandoned property”. Subsection 97(1) addresses the application of the Division and defines the term “abandoned property”. It provides:
97—Abandoned property
(1)This Division applies to property (abandoned property) that is left on residential premises by a tenant after termination of a residential tenancy agreement.
Section 97C deals with abandoned property consisting of personal documents and has no direct relevance in this matter.
Section 97B deals with abandoned property other than personal documents. It provides:
97B—Action to deal with abandoned property other than personal documents
(1)     This section applies to abandoned property other than personal documents.
(2)The landlord may, at any time after recovering possession of the premises, remove from the premises and destroy or dispose of abandoned property consisting of perishable goods.
(2a)The landlord must, within the period of 2 days after recovering possession of the premises, allow the tenant access to the premises to reclaim abandoned property.
(3)The landlord may, when at least 2 days have passed after recovering possession of the premises, remove from the premises and destroy or dispose of abandoned property, other than perishable goods, if the value of the property is less than a fair estimate of the cost of removal, storage and sale of the property.
(4)If there is abandoned property (other than personal documents) on the premises that may not be dealt with under subsection (2) or (3) (valuable abandoned property), the landlord must—
(a)     as soon as practicable, make reasonable attempts to notify the tenant that such property has been found on the premises; and
(b)     take reasonable steps to keep the property safe until at least 28 days after possession of the premises is recovered.
(5)A person who is entitled to possession of valuable abandoned property may reclaim the property by paying to the landlord the reasonable costs incurred by the landlord in dealing with the property in accordance with this Division and any other reasonable costs incurred by the landlord as a result of the property being left on the premises.
(6)If valuable abandoned property is not reclaimed within the period of 28 days referred to in subsection (4)(b), the landlord may, subject to the regulations, sell or otherwise lawfully dispose of the property (as if the landlord were the owner of the property).
(7)If valuable abandoned property is sold in accordance with this section, or if any other abandoned property is sold by the landlord, the landlord—
(a)may retain out of the proceeds of sale—
(i)the reasonable costs incurred by the landlord in dealing with the property in accordance with this Division and any other reasonable costs incurred by the landlord as a result of the property being left on the premises; and
(ii)any amounts owed to the landlord under the residential tenancy agreement; and
(b)     must pay the balance (if any) to the owner of the property, or if the identity and address of the owner are not known to, or reasonably ascertainable by, the landlord, to the Commissioner for the credit of the Fund.
(8)If a dispute arises between a landlord and tenant about the exercise of powers conferred by this section, the Tribunal may, on application by either party to the dispute, make orders resolving the matters in dispute.
Permission to appeal
Subsection 71(2) of the Tribunal Act provides that an appeal against a decision of the Tribunal is only by leave of the Supreme Court. It is now well established, and common ground, that the criteria for leave are that:
1the appeal is reasonably arguable; and
2the subject matter of the appeal is of sufficient substance to justify the cost of an appeal.[8]
[8] Pix v South Australian Housing Trust [2016] SASCFC 57 at [3] per Kourakis CJ (with whom Bampton and Doyle JJ agreed); Rose v South Australian Housing Trust [2016] SASCFC 115 at [3] per Kourakis CJ, Nicholson and Doyle JJ; DeMills v South Australian Housing Trust [2017] SASCFC 85 at [7] per Vanstone, Nicholson and Lovell JJ.
In relation to the first limb, for the reasons given below, the appeal is reasonably arguable.
As noted above, Ms Doherty contends that the appeal is bound to fail because her alternative contention cannot reasonably be resisted. This contention, if established, might be seen as negating the appeal being reasonably arguable, although it is probably better regarded as negating the second limb. However, for the reasons given below, the appeal is not bound to fail because Ms Doherty’s alternative contention cannot reasonably be resisted.
In relation to the second limb, Ms Doherty also contends that the subject matter of the appeal is not of sufficient substance to justify consideration because the evidence before the Tribunal established that Mr Sullivan’s possessions were of little value and did not exceed the cost incurred by Ms Doherty collecting and storing them or because Mr Sullivan has not established that the value of his possessions is sufficient to justify the costs of an appeal.
I reject Ms Doherty’s contentions. First, for the reasons given below, the evidence before the Tribunal did not establish that Mr Sullivan’s possessions were of little value or did not exceed the cost incurred by Ms Doherty collecting and storing them.
Secondly, given the way in which the review before the Senior Member was conducted (considered below), it would be inappropriate to find that the second limb is not established based on evidence that was or was not adduced before the Tribunal.
Thirdly, Mr Sullivan’s affidavits received on this appeal establish that it is reasonably arguable that his possessions had a substantial value. Although Mr Sullivan's affidavits were received on the basis that they do not prove the objective value of his possessions but are relevant, amongst other things, to whether permission to appeal should be granted, they do establish that he has a sufficient prospect of proving on an application for compensation that his possessions had a substantial value justifying this Court hearing and determining his appeal. For example, he produced a statutory declaration by Mr Hicks, who has been employed by Hi-Power Engines, Collectable Classics, Glen Smith Motors and Malalla Motorsport Park, who estimated the value of Mr Sullivan’s AP5 Valiant to be between $20,000 and $25,000. He also produced a quote from Shannon’s to insure that vehicle for an agreed value of $50,000.
I grant permission to appeal.
Evidential basis for finding about value
Mr Sullivan’s first ground of appeal is that the Senior Member erred in finding that the likely value of his items remaining at the premises would not have exceeded $5,800 when the finding was not open to her and was not within the evidence presented.
It is necessary to consider the evidence that was or was not adduced before the Senior Member in relation to Mr Sullivan’s possessions and their value in the context in which it occurred. That context is relevant also to the other grounds of appeal relating to the Senior Member finding that Mr Sullivan’s possessions were not “valuable abandoned property” within the meaning of subsection 97B(4) of the Act and is particularly relevant to the ground of appeal relating to procedural fairness. I therefore consider that context first.
Context
Leaving aside personal documents and perishable goods, Division 7 creates a dichotomy between valuable abandoned property and non-valuable abandoned property as follows:
1If the property is not valuable abandoned property (non-valuable property), the landlord may, after the requisite two days have passed, remove it from the premises and destroy or dispose of it.
2If property is valuable abandoned property (valuable property), the landlord must as soon as practicable make reasonable attempts to notify the tenant that it has been found on the premises and take reasonable steps to keep it safe until the passing of the requisite 28 days. During the requisite 28 days, the person entitled to possession of the property may reclaim it on the terms set out in section 97B. If the property is not reclaimed within the requisite period, the landlord may sell or otherwise lawfully dispose of it and must pay the proceeds, after deduction of amounts that the landlord is entitled to retain under this section, to the owner.
Several features should be noted about this dichotomy. First, when property is left on residential premises by a tenant after termination of a residential tenancy agreement within the meaning of section 97, there may well be multiple items of such property left. One item of property might be a personal document and will be required to be dealt with in accordance with section 97C. Another item might be perishable and may be dealt with under subsection 97B(2). Another item might be non-valuable (its value being less than a fair estimate of the cost of its removal, storage and sale) and may be dealt with under subsection 97B(3). Another item might be valuable and must be dealt with under subsections 97B(4) to (7).

Secondly, abandoned property in the possession of a tenant may well not be owned by the tenant. Division 7 appears not to be limited to property owned by the tenant but to extend to property in the tenant’s possession owned by another. Subsection 97B(6) appears to authorise the landlord to sell such property. On the one hand, it is surprising that a third party could be deprived of ownership of their property without fault, without knowledge and without any mechanism in Division 7 for them to be notified. On the other hand, section 97 defines abandoned property merely as property left on the premises by the tenant without reference to its ownership; subsection 97B(5) refers to a person who is entitled to possession of property rather than referring merely to the tenant (ostensibly contemplating that they may be different persons); and section 97B(7)(b) refers to the owner of the property (ostensibly contemplating that this may be different to the tenant because it provides for payment to the Residential Tenancies Fund if the identity of the owner cannot be ascertained). It is not necessary to decide this question of construction for this appeal but, if Division 7 does extend to property owned by another, it will be necessary for the landlord to differentiate between property in the possession of the tenant by reference to its ownership. If Division 7 does not extend to property owned by another, it will also be necessary for the landlord to differentiate between property in the possession of the tenant according to its ownership.
Thirdly, if an item of abandoned property is valuable abandoned property, the landlord must as soon as practicable make reasonable attempts to notify the tenant that such property has been found on the premises. This obligation is not deferred until the period of two days referred to in subsection 97B(2a) expires.
Ms Doherty elected to treat some items of property as valuable and others as non-valuable. She treated the following items as non-valuable and disposed of them pursuant to subsection 97B(2a):
1a fire extinguisher because it was long out of date; and
2items described as “vermin infested goods and rubbish” removed by Rental Ready (presumably in the nine cubic metre skip bin).
Ms Doherty treated other items of property, being those removed by Northern Vehicle Recovery, as valuable by taking steps to keep them safe for at least 28 days and by writing to Mr Sullivan on 7 March 2018 saying that he could reclaim his goods within the 28 day limit only by paying, amongst other things, costs of storage for 28 days. Ms Doherty could not have been entitled to demand payment for storage if the goods did not comprise valuable property.[9]
[9] The fact that the possessions comprised valuable goods was a necessary condition for Ms Doherty's demand for payment for storage. It was not necessarily a sufficient condition.
Ms Doherty did not suggest before the Member that Mr Sullivan’s possessions transported by Northern Vehicle Recovery did not comprise valuable property.[10]
[10] Although no transcript of the hearing before the Member was produced, this is common ground on appeal and in any event appears from the decision of the Member, who proceeded on the basis that it was common ground that the property comprised valuable property.
The Member in his decision did not refer to any issue whether Mr Sullivan’s possessions comprised valuable property and decided the issues on the premise that they did comprise valuable property.
Ms Doherty did not suggest in her Landlord’s Response to Tenant’s Grounds of Review of 17 May 2018 that Mr Sullivan’s possessions transported by Northern Vehicle Recovery did not comprise valuable property.
At the outset of the hearing before the Senior Member, the Senior Member said that she proposed to go through the written grounds of review and deal with them in a logical way (page 5). After addressing Ms Doherty’s application dated 1 March 2018 and its relevance to Mr Sullivan’s application, the Senior Member referred to the Member’s finding that Ms Doherty lawfully recovered possession of the premises on 27 February 2018 and Mr Sullivan’s grounds of review attacking that finding (pages 14 to 15). The Senior Member then heard submissions from Mr Sullivan’s lawyer and Ms Doherty, interspersed with questions addressed to Mr Sullivan or Ms Doherty which they answered under oath, relating to that first issue (pages 15 to 34).
In relation to the first issue, Mr Sullivan’s lawyer contended that Ms Doherty’s observation of motor vehicles and other items still on the premises on 27 February 2018 when she attended should have rung alarm bells that Mr Sullivan had not relinquished possession of the premises, even if she had formed that mistaken understanding as a result of the telephone conversation earlier that morning (page 15). Ms Doherty responded, saying that at least two thirds and perhaps closer to three quarters of Mr Sullivan’s possessions had been removed when she attended on that date; items that were left were items that one would scrap as rubbish; items of significant immediate value had been removed; and it looked as if the items that were left had been left intentionally (pages 15 to 16). This response was in the context of the sub-issue raised by Mr Sullivan’s lawyer concerning the first main issue. It addressed the value of Mr Sullivan’s possessions in a subjective and qualitative sense from the perspective of Ms Doherty, which was the relevant sense raised by the sub-issue, rather than in an objective sense purporting to give, or being able to give, evidence of objective value.
The Senior Member asked a series of follow-up questions of each of Mr Sullivan and Ms Doherty relevant to this sub-issue. Mr Sullivan disputed Ms Doherty’s assessment of the portion of items he had removed, saying that it was about 50 percent (page 17). The Senior Member referred to photos of items produced by Ms Doherty to the Tribunal and sought to ascertain the amount of items left on the premises by reference to those photos (page 19). She asked Ms Doherty if all items left were shown in the photos and Ms Doherty said that there were other items in addition which she briefly described. The Senior Member asked her whether there was nothing of any value apart from what was shown in the photos and Ms Doherty replied “not individually” (page 20).
The Senior Member asked Mr Sullivan to identify what items of value were left that were not showing in the photos. He referred to the list that he had prepared on 8 March 2018. He referred to various items, including 30 lawnmowers with catchers (some of which had been reconditioned); a set of large heavy duty wrought iron gates; a 1972 Express Yamaha motorcycle; parts for classic and vintage motorcycles and vehicles; a 1960s Deltek Australian motorcycle; and two Scott Bonnar lawnmowers for which he paid $1,000. He also referred to a recently painted aircraft trolley due to be sold to someone; a Land Rover owned by someone else and a Nissan Infiniti for which he had just paid $4,500 for the transmission (it appears that these latter items were shown in the photos but otherwise Mr Sullivan did not address, and was not asked to address, the items shown in the photos) (pages 20 to 22).
The Senior Member then asked Ms Doherty to go through the items identified by Mr Sullivan that were not shown in the photos and say what she asserted was not there. The Senior Member said that she was not asking about items in the photographs but only about items where there was a dispute as to their presence. Ms Doherty referred to various items in Mr Sullivan’s list and acknowledged that they were present, in the course of which she made comments on the condition of some of them. She acknowledged that there were two vintage pushbikes but said that the other two pushbikes described by Mr Sullivan as racing pushbikes were not racing pushbikes and were not functional. She said that they were unable to start the motor vehicles or motorcycles. She said that the people helping her raised with her whether the items were going to be worth more than it was costing her to dispose of them and she bordered on the side of caution because she did not know what some of the items were worth (pages 22 to 26). The Senior Member asked her whether she got a second-hand dealer to come and make an assessment of the value of the items and she said that she rang a couple of places and no one was prepared to go out there; she did her own investigations through Gumtree and eBay to see if there were any items that matched any of the descriptions but she was looking at a very small timeframe to be able to invest a lot of time into it. She said that the ride-on mower was valued at around $200 (page 26).
The Senior Member asked Mr Sullivan and Ms Doherty some questions about their communication on 27 February 2018 (pages 26 to 29). The Senior Member did not ask Mr Sullivan any questions in relation to the matters addressed by Ms Doherty referred to in the previous paragraph.
The Senior Member asked Mr Sullivan’s lawyer whether he wanted to say anything further on the issue whether the landlord was entitled to possession. Mr Sullivan’s lawyer and Ms Doherty made submissions on this issue (pages 29 to 34). No reference was made in those submissions to the number, identity or value of Mr Sullivan’s possessions.
The Senior Member moved on to consider the second part of the Member’s decision, which she identified as “revolv[ing] around giving the tenant reasonable notice that the landlord was going to deal with any possessions remaining at the property as abandoned” (page 34). The balance of the hearing addressed this second issue (pages 34 to 51). No reference was made in this part of the hearing to the number, identity or value of Mr Sullivan’s possessions.
The context in which Ms Doherty gave evidence contended by her on appeal to be relevant to the value of Mr Sullivan’s possessions is important. Insofar as she gave any such evidence, it was not in the context of being relevant to value. It was in the context of the issue whether the presence of Mr Sullivan’s possessions at the premises on 27 February 2018 put her on notice that he had not given up possession of the premises.
Capacity of evidence to support finding as to value
The Senior Member appears to have made her impugned finding as to value on the basis that the reference in subsection 97B(3) to “the value of the property” is to the property’s actual objective value (as assessed if in dispute by a court or tribunal having jurisdiction) rather than to its prospective value reasonably assessed by the landlord at the relevant time. It is common ground on appeal that, whatever the precise meaning of the reference to “value”, it is essentially an objective concept and does not refer merely to the subjective opinion of the landlord about value. I address the construction of subsection 97B(3) in this respect below. However, on any view the answer to the question about the capacity of the evidence to support the Seniors Member’s finding must be the same.
The evidence adduced before the Senior Member was incapable of supporting a finding that the value of Mr Sullivan’s possessions was less than $5,800 (or $7689) for determining whether they comprised valuable property. This is for several reasons.
First, Ms Doherty did not purport to give objective evidence of the value of Mr Sullivan’s possessions. She gave evidence of her beliefs concerning value because that was relevant to the issue whether Mr Sullivan had given up possession of the premises.
Secondly, the only evidence concerning the quantum of the value of any of Mr Sullivan’s possessions given by Ms Doherty was in relation to a ride-on mower, which she said had a value of $200. Ms Doherty did not purport to give evidence of the value of Mr Sullivan’s possessions other than the ride-on mower.
Thirdly, Ms Doherty said that she had no knowledge of the value of Mr Sullivan’s possessions (apart from the ride-on mower) and did not identify any basis on which she could give evidence as to the value of those possessions. The laws of evidence do not apply to proceedings in the Tribunal and hence the common law rule that ordinarily only a person with relevant expertise can give opinion evidence of value does not apply. There is no rule in the Tribunal precluding a lay person giving opinion evidence. However, this does not permit a person merely to speculate about a matter of which they have no knowledge and in particular does not permit a person merely to speculate about the value of an item.
Fourthly, some of Mr Sullivan’s possessions were, on the evidence given before the Senior Member, vintage or classic vehicles. Ms Doherty did not purport to have any knowledge on the basis of which she could have valued those items.
Fifthly, the only way in which the Senior Member could have made a finding concerning the value of the possessions was to identify each item or group of items and consider its value. The Senior Member did not do this and was not able to do this on the evidence adduced before her.
Ms Doherty contends on appeal that the Senior Member was entitled to act on her general assertions that Mr Sullivan’s possessions were items that one would scrap as rubbish, items of significant immediate value having been removed so that it looked as if the items that were left had been left intentionally. Leaving aside the fact that Ms Doherty disclaimed knowledge of values, this generalised assertion had no evidentiary weight at all on the issue of value. Indeed it was not adduced on that issue but rather on the issue as to the significance to Ms Doherty of the presence of Mr Sullivan’s possessions to the question whether he had given up possession of the premises.
Ms Doherty contends on appeal that the Senior Member was entitled to act on a statement she had recorded as an annotation to photographs of the vehicles “Best offer $1,900 for all 6 in a package deal as is”. Ms Doherty did not give any evidence before the Senior Member about any offers for the vehicles. On the contrary, she said that second-hand dealers were not prepared to come to the premises to view Mr Sullivan’s possessions. In any event, in the absence of evidence concerning any offers made, this annotation to the photographs had no evidentiary value at all. No reliance was placed on this annotation by Ms Doherty during the hearing before the Senior Member. In addition, this annotation relates only to a small number of Mr Sullivan’s possessions.
Ms Doherty contends on appeal that the Senior Member was entitled to act on a statement in the Northern Vehicle Recovery invoice describing the six vehicles as “Unroadworthy scrap vehicles”. This description in an invoice had no evidentiary weight at all. In addition, this description on the invoice related only to a small number of Mr Sullivan’s possessions.
Ms Doherty contends on appeal that the Senior Member was entitled to act on the photographs taken by her to which reference was made during the hearing. The photographs in themselves had no evidentiary weight. It is not possible to ascertain the value of the items depicted in the photographs merely by looking at them (some of which show little detail in any event). In addition, the photographs depicted only some of Mr Sullivan’s possessions.
Denial of procedural fairness
In light of my conclusion on Mr Sullivan’s first ground of appeal, it is not strictly necessary to decide the remaining grounds of appeal. However, I address them briefly for completeness and also because this is the first case in which the construction of section 97B has arisen in this Court.
Mr Sullivan’s fourth ground of appeal is that he was denied procedural fairness because the contention that the value of his items remaining at the premises would not have exceeded $5,800 was never put to him by Ms Doherty or the Tribunal.
The context in which any evidence was given before the Senior Member relating to Mr Sullivan’s possessions or their value is addressed above. It is clear from that context that the question whether the value of Mr Sullivan’s possessions was less than a fair estimate of the cost of their removal, storage and sale never arose. It was not raised as an issue before or decided by the Member and the parties proceeded before the Member and the Member proceeded on the premise that Mr Sullivan’s possessions comprised valuable property. It was not raised as an issue before the Senior Member. The Senior Member did not at any point identify it as an issue. On the contrary, she identified the issues and they did not include this issue. Mr Sullivan was not invited to give any evidence in response to such limited evidence as was given by Ms Doherty that might have been regarded by the Senior Member as relevant to value. Neither party was invited to make any submissions on this issue.
This ground of appeal must also be upheld.
Estoppel
Mr Sullivan’s third ground of appeal is that Ms Doherty accepted by her conduct that his possessions were “valuable abandoned property” and is now estopped from submitting to the contrary.
Only limited submissions were made on appeal concerning this ground. Mr Sullivan does not identify the species of estoppel upon which he relies. Potentially applicable species are representational estoppel, conventional estoppel and election (which is sometimes referred to as an estoppel but more often and more accurately as a waiver). So-called Verwayen estoppel[11] is a sub-species of representational estoppel.
[11] Named after Commonwealth v Verwayen (1990) 170 CLR 394.
The elements of representational estoppel are as follows.
1The other party makes a representation or engages in other conduct capable of occasioning the formation by the proponent of the assumption the subject of the second element.
2The proponent forms an assumption as to the relevant matter.
3The conduct of the other party is a material cause of the formation of the assumption by the proponent.
4The proponent takes or omits to take action in change of position in reliance on the assumption.
5The proponent would suffer detriment if the other party were permitted to depart from the assumption.
6It would be unjust or unconscionable for the other party to depart from the assumption.
The elements of conventional estoppel are as follows.
1The parties proceed on the basis of an assumption of fact and/or law capable of forming the foundation of the remaining elements.
2Each party, from the perspective of the other, accepts the assumption as true for the purpose of the transaction in question.
3Such acceptance is intended to govern the legal position between the parties.
4The proponent takes or omits to take action and is entitled to so act in reliance on the assumption.
5The other party knows that the proponent is so acting.
6The proponent would suffer detriment if the other party were permitted to depart from the assumption.
These two species of estoppel have in common that the proponent must take or omit to take action in reliance upon an assumption and would suffer detriment if the other party were permitted to depart from it. Mr Sullivan did not adduce evidence before the Senior Member capable of establishing these elements. This was because the issue whether his possessions comprised valuable property was not a live issue and he is not to be criticised for failing to adduce such evidence. However, its absence entails that I do not have the requisite evidence on which I could decide whether estoppel applies.
The elements of election between legal rights are as follows.
1The opponent has available two legal rights that are inconsistent with each other in the sense that they cannot both be exercised or invoked.
2The opponent by words or conduct intentionally exercises[12] or invokes one of those legal rights.
3The opponent does so with knowledge of the existence of each right (or perhaps it is sufficient that it is of the facts giving rise to each right).
4The opponent’s words or conduct comprising the exercise or invocation of the legal right is communicated to the proponent.
[12] The exercise need not be completed but the opponent must embark on the exercise.

I am disposed to consider that the right to deal with valuable property under subsections 97B(4) to (6) can be inconsistent with the right to destroy or dispose of non-valuable property under subsection 97B(3) but it is unnecessary and undesirable to decide that question for the following reasons. Ms Doherty’s evidence before the Senior Member suggests that she knew from discussions with Tribunal staff that a landlord has a choice between treating a tenant’s abandoned property as valuable property or non-valuable property and can or must act in different ways accordingly and that she chose to act on the basis that Mr Sullivan’s possessions were valuable property with knowledge of her alternative rights. However, election was not an issue before the Senior Member and Ms Doherty did not have an opportunity to adduce evidence on its elements. I am therefore unable to decide in any event whether Ms Doherty was precluded from claiming that Mr Sullivan’s property was non-valuable property.
Definition of valuable property
Mr Sullivan’s second ground of appeal raises the contention that the Senior Member erred in the way she assessed the “value of the property” within the meaning of subsection 97B(3).
The definition of valuable property requires a comparison between “the value of the property” on the one hand and “a fair estimate of the cost of removal, storage and sale of the property” on the other hand.
The second element clearly does not refer to the actual objective costs ultimately incurred to remove, store and sell the property, which will not be ascertained for several weeks after the landlord makes the decision whether to deal with the property as valuable or non-valuable property. It requires the landlord to make an estimate of the prospective costs and that the estimate be “fair”. Fairness connotes principally that the estimate is reasonably informed (how and to what extent the landlord is required to make enquiries will obviously vary depending on the circumstances) but an estimate might also be not fair if it is unreasonable.
The first element is expressed to refer merely to the “value” of the property. A literal reading would suggest that this is purely an objective concept (including reference to information that may only be obtained in hindsight). However, the context of the reference to value as part of the definition of valuable property which determines prospectively how a landlord may act and the evident purpose of the definition both suggest that this is not purely an objective concept but rather refers to the objective value of the property at the time the landlord determines whether to treat the property as valuable or non-valuable property (that is, based only on information available at the time).
Whatever be the precise construction of the reference to “value” in subsection 97B(3), for the reasons given above the Senior Member erred in her assessment of it.
I observe for completeness that the Senior Member did not make a finding as to what would have comprised “a fair estimate of the cost of removal, storage and sale of the property”. The Senior Member referred to a figure of $5,800. That figure was the total of the invoice rendered by Northern Vehicle Recovery. No evidence was adduced or finding made that $3,000 was a fair estimate of the cost of transport or $2,800 was a fair estimate of the cost of storage. No evidence was adduced that it was necessary or reasonable for Ms Doherty to commit in advance to storage for 28 days. No consideration was given to whether the value of an individual item may have exceeded the costs of removal, storage and sale of that item as opposed to considering all items collectively. The Senior Member did not refer to the costs incurred with Rental Ready totalling $1690. However, Mr Sullivan does not raise this aspect of the assessment as a ground of appeal and I reach no conclusion concerning it.
Entitlement to reclaim the property
Mr Sullivan’s fifth ground of appeal is that the Senior Member erred in failing to find that he was entitled to recover his possessions that remained on the premises when he attended the premises on 2 March 2018.
This ground is only advanced in the alternative to the above grounds and, given my conclusion on those grounds, it is not strictly necessary to consider it. However, I address it briefly for completeness.
Breach of subsection (2a)
Mr Sullivan’s first contention is that Ms Doherty breached subsection 97B(2a) by not allowing him access to the premises on 2 March 2018 to reclaim his property.
Ms Doherty contends that the Senior Member found that she recovered possession of the premises on 27 February 2018 and hence she was only required by subsection 97B(2a) to allow access to Mr Sullivan on 28 February and 1 March 2018. She contends that Mr Sullivan does not challenge the finding as to the date of recovery of possession of the premises and hence cannot rely on subsection 97B(2a) in respect of his attendance on 2 March 2018.
I have some difficulty in understanding how the Member and Senior Member arrived at their conclusion that Mr Sullivan gave up possession of the premises on 27 February 2018. On Ms Doherty’s version of the telephone conversation on that morning (which they accepted and were entitled to accept), Mr Sullivan advised her that “the property was ready for inspection”. She did not suggest that he said that he was giving up possession or that he had removed all of his possessions. He had earlier given dates by which he foreshadowed that the house or the premises would be ready for inspection and had not achieved those dates. Ms Doherty also said that she reminded him that he was still liable for rent until she got a new tenant or the lease finished and he replied that he might be able to pay something in two weeks, which suggests that both parties regarded the tenancy agreement as still on foot and not having been terminated. Mr Sullivan was not asked to return his keys and did not do so. When Ms Doherty inspected the premises later that day, there were still many possessions of Mr Sullivan in the shed and on the grounds. Nevertheless, Mr Sullivan does not challenge the conclusion reached by the Member and Senior Member on this issue and I proceed on the basis that objectively Mr Sullivan relinquished possession of the premises to Ms Doherty on 27 February 2018.
Subsection 97B(2a) provides:
The landlord must, within the period of 2 days after recovering possession of the premises, allow the tenant access to the premises to reclaim abandoned property.
It is a question of construction whether subsection 97B(2a) imposes only a passive obligation on the landlord to stand back and allow the tenant access or whether the landlord has an active obligation to afford access in the sense of ensuring that the tenant is aware that the landlord has recovered possession and the two day period has started to run.
It may be expected that in some cases the tenant will be aware that the landlord has recovered possession of the premises at the time of recovery, such as where the tenant is physically evicted. However, it may also be expected that in some cases the tenant will be unaware, such as when the tenant is not physically in possession of the premises or is away. I am therefore inclined to favour the second construction that the landlord has an active obligation to ensure that the tenant is aware of the recovery of possession of the premises. If this is the correct construction of the subsection, on the findings made by the Senior Member, Ms Doherty would have breached her obligation under subsection 97B(2a) because (for the reasons given below) she did not take reasonable steps to inform Mr Sullivan that she had recovered possession. However, I refrain from deciding this point because it was not fully argued and it is unnecessary to decide it to dispose of the appeal.
Breach of subsection (5)
Mr Sullivan’s second contention is that Ms Doherty breached subsection 97B(5) by not allowing him access to the premises on 2 March 2018 to reclaim his possessions.
Subsection 97B(5) provides:
(5)A person who is entitled to possession of valuable abandoned property may reclaim the property by paying to the landlord the reasonable costs incurred by the landlord in dealing with the property in accordance with this Division and any other reasonable costs incurred by the landlord as a result of the property being left on the premises.
As observed above, section 97B proceeds on the premise that one item of abandoned property might be non-valuable and another item might be valuable. When Mr Sullivan attended at the premises on 2 March 2008, the only items that had been removed by Northern Vehicle Recovery were five of the vehicles. Prima facie he was entitled to reclaim the rest of his possessions.
Subsection 97B(5) imposes a condition upon the right to reclaim property that the claimant (who may or may not be the tenant) pay to the landlord “the reasonable costs incurred by the landlord in dealing with the property in accordance with this Division”. It is not clear what costs Ms Doherty had incurred as at midday on 2 March 2008 in dealing with the five vehicles. However, it necessarily follows from subsection 97B(5) that, if the landlord wishes to insist on compliance with the condition of payment of reasonable costs, the landlord must inform the claimant of the amount of those costs and how they are calculated. Ms Doherty did not do this. Instead, she instructed that Mr Sullivan was to leave the premises and was not to take any of his possessions. When Mr Sullivan sent to her an email at 2.51 pm that afternoon, she did not inform him of any costs incurred in dealing with the five vehicles or otherwise. It follows that she was not entitled to resist allowing Mr Sullivan to collect his possessions.
It is unnecessary to decide what costs a landlord is entitled to require be paid as a condition of allowing collection under subsection 97B(5). Subsection (4) refers only to “tak[ing] reasonable steps to keep the property safe” for 28 days. It does not necessarily follow that the landlord is entitled to incur costs of transport and external storage if the property can be kept safe at the residential premises. What is reasonable in this respect will depend on the particular circumstances.
It is also unnecessary to decide whether a landlord can resist allowing a tenant to collect one item of property in respect of which no costs have been incurred unless and until the tenant pays the costs incurred in respect of a different item of property that the tenant does not seek to collect. Clearly the landlord could not do this if one person was entitled to possession of one item of property and a different person was entitled to possession of the other item of property. For example, the landlord could not resist allowing a third party entitled to possession of an item of property to collect it because the landlord had incurred costs in respect of a different item of property to which the tenant was entitled to possession. I am disposed to consider that the landlord can only require payment of costs incurred in respect of the item of property sought to be reclaimed and it follows that Ms Doherty would not have been entitled to insist on payment of any costs reasonably incurred in respect of the five vehicles before making available Mr Sullivan’s other possessions still on the premises on 2 March 2018. However, it is unnecessary to decide this point and I do not do so.
I observe that Ms Doherty did not adduce any clear evidence that, if she had allowed Mr Sullivan to take his possessions still on the premises on 2 March 2018, she would still have been obliged to pay Northern Vehicle Recovery for transport and storage of those possessions which it had not taken and would not have stored. On its face, she would not have been acting reasonably if she had agreed to such terms and it is very doubtful that she could have insisted on payment by Mr Sullivan of such costs. However, again it is unnecessary to decide this point.
I observe that Ms Doherty only sent a letter to Mr Sullivan about the costs she said that she incurred on 7 March 2018 by post. By that date, she had incurred further costs with Northern Vehicle Recovery (and presumably with Rental Ready) on the balance of 2 March after Mr Sullivan’s attendance and on 3 and 5 March 2018. These costs would not have been incurred if she had allowed Mr Sullivan to collect his possessions that remained at midday on 2 March 2018. She did not adduce evidence in the Tribunal that the costs incurred in packing, transporting or storing Mr Sullivan’s possessions were reasonable or were reasonably incurred.
I uphold this ground of appeal on the simple basis that Ms Doherty was not entitled to refuse Mr Sullivan’s request on 2 March 2018 to reclaim his possessions on the ground that he did not pay reasonable costs incurred by her in dealing with them under the Act because she did not inform him of the amount or calculation of those costs.
Alternative contention by Ms Doherty
Ms Doherty raises an alternative contention that the Senior Member’s decision should be upheld for different reasons, namely that she erred in finding that Ms Doherty breached section 97B(4)(a).
The Senior Member found that Ms Doherty did not comply with her obligation under section 97B(4)(a) to make reasonable attempts to notify Mr Sullivan about her intentions in relation to his possessions remaining at the premises because she should have sent an email and a text message to him in addition to making telephone calls that were not answered.
Two issues potentially arise under Ms Doherty’s alternative contention:
1Was the Member correct in finding that Ms Doherty made reasonable attempts by making telephone calls that were not answered and consequentially the Senior Member wrong in overturning that finding?
2Did the Senior Member confine her attention to a period of two days encompassing 28 February and 1 March 2018 when no such time is specified in subsection 97B(4) and should the Senior Member have found that Ms Doherty made reasonable attempts by sending the letter dated 7 March 2018?
Phone calls v email and text message
It may be that Ms Doherty does not advance a contention on appeal that the Member was correct in finding that she made reasonable attempts by making telephone calls that were not answered. Although it was suggested in argument that she did, this contention was not developed. However, I proceed on the assumption that Ms Doherty does advance this contention.
The Senior Member was correct in finding that the Member wrongly concluded that it was adequate in the circumstances for Ms Doherty merely to make telephone calls to Mr Sullivan’s telephone that were not answered. Ms Doherty had communicated with Mr Sullivan by email. She had sent him an email on 15 February 2018 and he had responded on the same day. Ms Doherty advanced as justification for not sending an email that Mr Sullivan might not have had internet access or reception but this was merely speculation on her part and no reason not to send an email. There was also no reason for her not to send a text message and she did not provide any convincing reason in her evidence before the Senior Member for not doing so.
Temporal aspect
Section 97B(4)(a) provides:
(4)If there is abandoned property (other than personal documents) on the premises that may not be dealt with under subsection (2) or (3) (valuable abandoned property), the landlord must—
(a) as soon as practicable, make reasonable attempts to notify the tenant that such property has been found on the premises; and
In contrast to subsection (2a), subsection 97B(4)(a) does not refer to a period of days during which the landlord must make reasonable attempts to notify the tenant that valuable property has been found on the premises. Rather, the obligation is expressed to be “as soon as practicable”.
Ms Doherty contends that the Senior Member conflated the two day obligation referred to in subsection (2a) with the “as soon as practicable” obligation referred to in subsection (4)(a). It is true, as Ms Doherty points out, that the Senior Member in her decision inserted a heading before her consideration of this issue entitled “Issue 2: Has the landlord made reasonable attempts to notify the tenant within 2 days of recovering possession that valuable abandoned property had been found on the premises?” However, the Senior Member’s reasons for reaching her conclusion on the second issue are set out at [48] above. There is no reference in those reasons to a period of two days. In addition, during the hearing the Senior Member adverted to the distinction between subsection (2a) and subsection (4)(a) and suggested to Mr Sullivan’s solicitor that he was conflating the two subsections.
In any event, the obligation imposed by subsection (4)(a) requires the reasonable attempts to notify the tenant that valuable property has been found on the premises to be made “as soon as practicable”. Given Ms Doherty’s intentions in relation to Mr Sullivan’s possessions, this required her to make reasonable attempts not later than 28 February 2018. Even if she was only required to make reasonable attempts on and after 2 March 2018, she manifestly failed to do so. She did not attempt to send an email or text message to Mr Sullivan and she did not reply to his email sent to her on 2 March 2018 at 2.51 pm. Her letter of 7 March 2018 was sent much too late for this purpose, especially since most of Mr Sullivan’s possessions had not yet been transported by Northern Vehicle Recovery as at midday on 2 March 2018.
It is true that Mr Sullivan did not pay to Ms Doherty $7,689 that she demanded in her letter of 7 May 2018, which was still within the 28 day period referred to in section 97B(5)(b). However, this included costs incurred after 2 March 2018, was demanded on a global basis to be paid before any possessions could be collected, and was not established by Ms Doherty to have been reasonably incurred or recoverable under section 97B.
The Senior Member was correct in her conclusion that Ms Doherty did not comply with her obligation under section 97B(4)(a) of the Act.
Conclusion
I will make the following orders:
1Permission to appeal granted.
2Appeal allowed.
I will hear the parties concerning the remaining orders to be made for the disposition of the appeal.