Tait v Village Community Co-Operative Ltd - [2017] SASC 109

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
TAIT v VILLAGE COMMUNITY CO-OPERATIVE LTD
[2017] SASC 109
Judgment of The Honourable Justice Nicholson
21 July 2017
ASSOCIATIONS AND CLUBS - EXPULSION, SUSPENSION AND DISQUALIFICATION - POWER TO EXPEL, SUSPEND AND DISQUALIFY
TORTS - TROVER AND DETINUE - WHAT CONSTITUTES CONVERSION - GENERALLY
BAILMENTS - IN GENERAL
PERSONAL PROPERTY - OWNERSHIP AND POSSESSION
This is an appeal by Caroline Theresa Tait from a decision of a Magistrate who was required to determine a claim by Village Community Co-operative Limited, the respondent, for the sale or disposal of the appellant’s goods, pursuant to the Unclaimed Goods Act 1987, together with a counter-claim brought by the appellant.
The Co-operative purported to expel the appellant from membership in October 2011. For some time prior thereto and from that time on, the Co-operative sought to have the appellant remove a very substantial quantity of her personal belongings from the Kuitpo property. She has failed to do so. As a consequence, the respondent instituted proceedings in the Magistrates Court pursuant to the Unclaimed Goods Act 1987. In her defence and counterclaim, the appellant asserted that her expulsion was invalid, that the Co-operative had no entitlement under the Unclaimed Goods Act to have the goods removed or sold and claimed damages under various causes of action.
Held:
1. The Magistrate’s findings and orders concerning the validity of the expulsion of the appellant in paragraphs [50]-[54] of the Magistrate’s Reasons are set aside.
2. Nevertheless, the appellant has not succeeded in having the expulsion set aside and it remains in force.
3. The Magistrate’s order permitting the respondent to offset the sum of $3,000 in the manner set out in paragraph [56] of the Magistrate’s Reasons is set aside.
4. In all other respects, the Magistrate’s orders concerning the respondent’s unclaimed goods action in paragraph [56] of the Magistrate’s reasons are confirmed.
5. The Magistrate’s findings and orders concerning the demolition of the incomplete extension in paragraph [57] of the Magistrate’s Reasons are set aside.
6. In all other respects, the appeal is dismissed.
7. The stay given on 20 June 2016 of the Magistrate’s orders (as now varied) is vacated.
Co-operatives Act 1997 s 84, s 187, s 188, s 191, s 216, s 217; Magistrates Court Act 1991 s 8, s 10, s 10A, s 25, s 26, s 32, s 40; Supreme Court Civil Rules 2006 r 286; Corporations Act 2001 (Cth) s 9; Unclaimed Goods Act s 5, s 6, s 7, referred to.
CSR Ltd v Della Maddalena [2006] HCA 1, (2006) 224 ALR 1; Fox v Percy [2003] HCA 22, (2003) 214 CLR 118; Roberts T/A Contract Refrigeration Services v Kowshu Enterprises Pty Ltd [1999] SASC 158; The Registrar of Motor Vehicles v McIver [2014] SASC 51; Sherriff v Dudley [2000] SASC 324; Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204, considered.

TAIT v VILLAGE COMMUNITY CO-OPERATIVE LTD
[2017] SASC 109
Magistrates Appeal: Civil
NICHOLSON J.
Introduction

This is an appeal by Caroline Theresa Tait from a decision of a Magistrate who was required to determine a claim by Village Community Co-operative Limited[1] for the sale or disposal of the appellant’s goods, pursuant to the Unclaimed Goods Act 1987, together with a counter-claim brought by the appellant.
[1] To which I will refer throughout these reasons as either the Co-operative or the respondent.
The respondent was established in the late 1970s with its primary activity being “the development, maintenance and promotion of environmentally sustainable and socially aware communities based on principles of co-operation and justice”.[2] At all material times, the Co-operative has had a relatively small number of active members, in the order of 20 or so, although the membership has fluctuated over the years. At all material times the Co-operative has been the registered proprietor of 67 Adams Gully Road, Kuitpo (Hope Forest) South Australia (the “Kuitpo property”).
[2] Appendix 2, Part 2 of the Rules of Village Community Co-operative Ltd.
The Co-operative purported to expel the appellant from membership in October 2011. For some time prior thereto and from that time on, the Co-operative sought to have the appellant remove a very substantial quantity of her personal belongings from the Kuitpo property. She has failed to do so. As a consequence, the respondent instituted proceedings in the Magistrates Court pursuant to the Unclaimed Goods Act. In her defence and counterclaim, the appellant asserted that her expulsion was invalid, that the Co-operative had no entitlement under the Unclaimed Goods Act to have the goods removed or sold and claimed damages under various causes of action.
In the following section I provide a very brief overview of the history and nature of the relationship between the appellant and other members of the Co-operative. It is plain that the relationship broke down irretrievably many years ago.
Overview of the history and nature of the relationship between the appellant and the Co-operative
Many years ago, members of the Co-operative erected a mud brick residential building on the Kuitpo property. It provided for various living spaces and common area facilities for some members. Planning restrictions were such that only a single dwelling building could be erected on the land. However, in order to accommodate more members, extensions to that single building were erected, with council approval, from time to time.
The appellant first resided at the Kuitpo property in April 1993 and occupied a bedroom in the original building. She acquired shares in and became a member of the Co-operative later that same year.
In March 1998, the appellant obtained approval from the local council to build an extension to the original building. As the appellant acknowledged during the appeal, the extension has never been completed. The council approval expired on 10 January 2001. The appellant gave evidence at trial that she last worked on the extension in July 2008 and that she had been using the extension as an outside living area. The Magistrate found[3] on the evidence before him that, as at 2009,
[T]he extension was largely roofed, but was not satisfactorily roofed towards its edges. It was unsealed on all sides but the one that abutted another building, the floor was wet soil with no coverings, there was some wiring but no second fix, horizontal beams were too low to allow normal head room and curved steel on the outside had odd bits of rust. The timber ends were severely water damaged, and the building was not habitable.
[3] The Village Community Co-operative v Caroline Theresa Tait, Judgment of Magistrate Dixon, 6 April 2016, CHBCI-13-150 (Magistrate’s Reasons) at [22].
Over the years, the appellant had brought onto and kept on the Kuitpo property a very large quantity of building materials, including wooden posts, plate glass, steel piles, clay bricks, and timber. She also brought many other personal possessions onto the Kuitpo property, some of which were stored in a shipping container.
The appellant started to spend less time at the Kuitpo property from mid-2000. From 2007 she lived elsewhere. It was agreed before the Magistrate that the appellant had completely moved away from the property by the end of January 2009, after which she rarely visited.
The evidence before the Magistrate at trial demonstrated that the relationship between the appellant and other members of the respondent deteriorated substantially over a period of about 12 years. Members of the Co-operative were concerned about the nature of the building work that had been carried out by the appellant and the nature and quantity of her personal property that she had brought onto the Kuitpo property. According to Susan Hanckel, another member, by 2007, the appellant had become unhappy and difficult to communicate with and was not contributing to the Co-operative. At about that time it was raised during a meeting of the Co-operative that an offer should be made to “buy her out” of the Co-operative.
Iain Rundle, another member of the Co-operative, gave evidence at trial that from the beginning of 2007, the appellant had failed to pay any room rent (which was a requirement additional to the $180 per month that she had paid for the “ground rent” and an administration fee). The appellant also no longer attended meetings on a regular basis nor did she read the Co-operative’s newsletter.
In 2008, a decision was made to enforce the Co-operative’s policy that required members living at the Kuitpo property to enter into residency agreements. However, the appellant refused to sign or negotiate such an agreement. A previous agreement had expired in 2003. According to Iain Rundle, all other residents executed a residency agreement.
On her part, the appellant alleged that other members harassed her whilst she was living on the Kuitpo property, including by urinating on her garden herbs and by threatening to place shards of glass on her bed, to throw the appellant’s tools in the dam and to demolish the appellant’s extension unless it was sold to members of the Co-operative. She also has alleged that the Co-operative failed to keep her possessions insured, denied her access to the Kuitpo property, switched off her fridge and assaulted her.
In early 2009 the Co-operative unsuccessfully attempted to expel the appellant from the Co-operative. An attempted mediation also failed.
The foregoing comprises only snippets of the parties’ acrimonious interactions over this period. After having reviewed the evidence before the Magistrate and the parties’ submissions on appeal, and without needing to investigate the rights or wrongs of the alleged behaviour of various members towards the appellant and the alleged behaviour of the appellant, it is plain that the relationship had completely disintegrated as at 2009, if not earlier.
On 6 August 2011, a number of members voted at a meeting in favour of proceeding with the process of expelling the appellant from the Co-operative. Following the meeting, the Co-operative sent a letter to the Office of Consumer and Business Affairs (“OCBA”), giving notice of a proposed special resolution to this effect, as required by the Co-operatives Act 1997. On 30 August 2011, the OCBA wrote to the Co-operative and advised that there were no grounds upon which the OCBA would disallow the resolution in the circumstances.
The details of a proposed general meeting to consider a motion to expel were sent by email to members of the Co-operative on 13 September 2011. The email advised members that they could email their vote.
Two separate meetings were conducted on 15 October 2011; the first meeting was a general meeting of members and the second was a “Special Resolution Meeting”. Eight of the Co-operative’s members attended the “Special Resolution Meeting”. The emails of six members who were unable to attend the meeting were read aloud, each email advising of a vote in favour of the special resolution. The members present then discussed the special resolution, after which a vote was taken.
Six members present at the meeting voted in favour and two members, one of which was the appellant, voted against the resolution. The minutes record that the resolution was passed with 12 votes (including those by email) in favour and two against.
On 21 October 2011, the expulsion resolution was registered with the OCBA.
By letter dated 9 October 2012, the Co-operative informed the appellant that she was required to collect her personal property stored on the Kuitpo property before 26 November 2012. The letter advised that the appellant would be able to do so on a Wednesday, Thursday or Friday between 10am and 4pm. The appellant was asked to confirm a time before attending at the property. The possibility of negotiating an alternative time was left open. The letter informed the appellant that after 26 November 2012, the Co-operative would charge the appellant a storage fee of $45 per week.
The letter identified the personal property to be removed as including but not limited to: two caravans (and their contents); one shipping container (and its contents); one vehicle (blue Ford utility); building materials; contents of the incomplete structure (including furniture, building materials); and contents of the mud brick bedroom previously occupied by Ms Tait (which items had been moved to the incomplete structure and included clothes, furniture, personal effects).
On 8 March 2013, being five months after the appellant had been requested to remove her personal property, the Co-operative filed its claim in the Magistrates Court seeking relief under the Unclaimed Goods Act. Notwithstanding the filing of the claim, the Co-operative’s solicitors contacted the appellant’s solicitors in April 2013 in an effort to reach a resolution, but without success.
The nature of the dispute before the Magistrate
By way of response to the Co-operative’s claim filed on 8 March 2013, the appellant filed a defence and counter-claim. The final (amended) form of this document was filed on 17 March 2014.
By her defence, the appellant denied that the items, the subject of the Co-operative’s claim, were unclaimed goods for the purposes of the Unclaimed Goods Act. By way of counter-claim, the appellant alleged and sought damages for:
(i)conversion consequent on the “residents and plaintiff” intentionally interfering with the appellant’s “food, finances and chattels” from 2008 onwards;
(ii)trespass to property consequent on “Village Directors and associates” intentionally interfering with the appellant’s home and house extension;
(iii)an act of battery on 18 March 2012 by being pushed in the back by a named Village Director; and
(iv)negligence in the manner by which the expulsion procedure was conducted and because the appellant “was denied due process and procedural fairness” in breach of the Co-operative’s Rules and the Co-operatives Act.
The appellant’s prayers for relief included a claim for special damages in the amount of $72,000, general damages for emotional distress, loss of amenity and suffering, a declaration that her expulsion was invalid, an injunction to prevent any further interference with her property and any further relief as deemed by the Court.
By its defence to the counter-claim filed on 22 September 2014, the Co-operative denied each of the appellant’s causes of action.
The Magistrate’s decision
Following a seven-day trial spanning more than a year, a judgment was delivered on 6 April 2016.
The Magistrate was unimpressed with the appellant as a witness. His Honour made these observations.[4]
[The appellant] has a very good memory for dates and events, but was clearly disorganised, rambling, acrimonious and obsessed by feelings of victimisation.
It appears that, consistent with her behaviour in court [the appellant at the expulsion meeting] rambled initially on point and then drifted into various unrelated and irrelevant topics.
[emphasis supplied]
[4] Magistrate’s Reasons at [41], [52].
The Magistrate found that the Co-operative had proper grounds to expel the appellant in accordance with rule 8(1)(a) of the Co-operative’s Rules[5] and that the appellant had been provided with sufficient notice of the proposed special resolution for her expulsion. His Honour further found that the appellant had been provided with a “reasonable opportunity to be heard”, as required by rule 8(3)(a) and held that the process had been conducted in accordance with the Co-operative’s Rules such that the special resolution passed by the Co-operative was valid.
[5] Rule 8(1)(a) provides: “A member may be expelled from the co-operative if the co-operative by special resolution determines that the member should be expelled on the ground that –
(a)the member has filed to discharge the member’s obligations to the co-operative under the Act or these rules.”
The Magistrate found that no claim for personal injury was made out and, in particular, that there was insufficient evidence to substantiate the claim for emotional distress, loss of amenity, and pain and suffering.[6] As for the appellant’s claim for damage to her personal property, the Magistrate found that the values attributed by the appellant with respect to her list of possessions could not be substantiated and did not take into account the condition, age and value of the items at the time of the trial. The Magistrate found that much of the appellant’s property had been stored outside, exposed to the elements for many years, had deteriorated beyond repair and was worthless, as a consequence of the appellant’s own neglect. The Magistrate found that the appellant was not entitled to damages for loss of or damage to property.[7] The final conclusions reached and “orders” made by the Magistrate were as follows.[8]
In view of the above, I make the following findings.
On the claim, I find that Ms Tait has claimed the goods since commencement of proceedings. Ms Tait is to collect her goods and chattels and remove them from the land owned by the Cooperative within three months of the date of this judgment. For that purpose, the Cooperative is to allow Ms Tait reasonable access to the land. Any goods or chattels remaining on the land after the period of three months has elapsed shall be sold or disposed of by the Cooperative in accordance with Provisions [sic] 6, 7 and 8 of the Unclaimed Goods Act 1987. The Cooperative may claim up to $400.00 for storing the goods, in addition to the sum of $3,000 representing the value of Ms Tait’s share in the Cooperative, which sum shall be deducted from any amount owed by Ms Tait to the Cooperative and thereafter any balance from the sale of the goods payable to Ms Tait shall be paid within 28 days of the determination of the amount owing by Ms Tait, which determination shall be by agreement or as determined by the court.
I accept the view of [the valuer] Mr Taormina that the structure is of no market value. In my view it should be demolished. It is an eyesore and not habitable. The material from which it is constructed should be made available for collection and removal by Ms Tait within 3 months of the date of this judgment. Any such material remaining on the land after the period of three months has elapsed shall be sold or disposed of by the Cooperative and the proceeds of such sale are to be deducted from the cost of dismantling the structure and disposing of the material. Any balance is to be paid to Ms Tait. I find that the claim of Ms Tait for special damages for damage and loss of property fails.
Each party is to bear their own costs of these proceedings.
[6] Magistrate’s Reasons at [17].
[7] Magistrate’s Reasons at [19]-[20].
[8] Magistrate’s Reasons at [55]-[58].
Appeal to the Supreme Court
The appellant filed a Notice of Appeal against the Magistrate’s decision on 27 April 2016 and on 8 June 2016 applied for a stay of the orders of the Magistrate. On 20 June 2016, a Magistrate, by consent, ordered a stay pending the outcome of the appeal.
The grounds of appeal are prolix and lack clarity. However they raise the following contentions.
(i)The Magistrate erred in law as to the appellant’s expulsion from the Co-operative, the appellant’s shares in the Co-operative and her equity in the housing on the Kuitpo property.
(ii)The Magistrate erred in both fact and law with respect to findings made pursuant to the Co-operative’s claim pursuant to the Unclaimed Goods Act.
(iii)The Magistrate erred in his findings based on the evidence before his Honour relevant to:
(a)whether the appellant could access her home and chattels on the Kuitpo property;
(b)the valuation of the appellant’s extension, including the expert evidence;
(c)the attempts at mediation as part of the Co-operative’s Rules;
(d)the appellant’s maintenance and improvements to the extension of the mud brick house; and
(e)the appellant’s contents insurance was “removed” by the Co-operative.
(iv)The Magistrate erred in his assessment of the evidence given by witnesses called on behalf of the Co-operative at trial on matters relevant to the appellant’s home and chattels, alleging bias.

The appeal to this Court is pursuant to section 40 of the Magistrates Court Act 1991 and is an appeal by way of rehearing. For this purpose, I have undertaken a review of the trial evidence and the Magistrate’s reasons. The role of the appellate Judge in this respect has been described by Kirby J in the following terms.[9]
[T]he appellate court is obliged to conduct a thorough examination of the record and a real rehearing. It is not confined to reconsideration of the record in order to correct errors of law, although that will certainly be encompassed in such an appeal. It is required to consider suggested errors of fact-finding. Experience teaches that many errors of this kind arise at first instance, more perhaps than errors of law. Having conducted a rehearing as so described, the appellate court is obliged to “give the judgment which in its opinion ought to have been given in the first instance”. This involves, where, as here, there is no jury, conducting a thorough review of the primary judge’s reasons and engaging in the tasks of “weighing conflicting evidence and drawing of inferences and conclusions”.
[citations omitted]
[9] CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 224 ALR 1 at [16].
The usual advantages enjoyed by the Magistrate, obtained by having heard and seen the witnesses give their evidence, must be respected in the manner and subject to the constraints identified by Gleeson CJ, Gummow and Kirby JJ in Fox v Percy.[10]
[10] [2003] HCA 22; (2003) 214 CLR 118 at [23], [25]-[29] and [41].
Issues arising on appeal
The parties were unrepresented before the Magistrate. The Co-operative obtained legal representation very shortly prior to the hearing of the appeal. As a consequence, the trial before the Magistrate comprised a relatively unstructured ventilation by both sides of numerous grievances that had arisen between the appellant and other resident members of the Co-operative over very many years. The Magistrate was not assisted by the manner in which the respective cases were presented or by the nature of some of the oral and documentary evidence adduced. This was not the fault of either party, unrepresented as they were, but the inevitable consequence of years of unstructured community living without formal rules (or, at least, without any real attempt to apply or observe such rules as existed) and with inadequate documenting of the arrangements that notionally had been in place governing members’ conduct over the years.
The genesis of much of the problem between the parties can be briefly described. The appellant (as did others) contributed her own labour, and financial resources over many years to the development of the communal living facilities on the Kuitpo property. She also contributed her own labour and financial resources in building the unfinished extension which was to be her living quarters. The Rules of the Co-operative provide that to be a member one must, inter alia, acquire shares in the Co-operative to the value of $3,000. The Rules further provide that if a member leaves the Co-operative they are to receive the purchase price of their shares - $3,000 – but nothing more. The appellant had no contractual entitlement to be reimbursed or compensated for the labour and money expended by the appellant on “improving” the respondent’s property.
In addition, the appellant, in happier times, brought onto the Kuitpo property a very substantial quantity of personal possessions (the general nature of which has earlier been described). Ordinarily, the appellant would be entitled to retain possession of that personal property. It is another question whether the appellant is entitled to leave her personal property indefinitely on the Kuitpo property, whether or not she is a member of the Co-operative.
The extension to the central building gives rise to different considerations. Being a fixture (as was conceded by the appellant during the appeal) it is and remains the property of the Co-operative.
Furthermore, there is no provision in the Rules of the Co-operative or otherwise for a person who ceases to be a member (for any reason) to be compensated for any labour, materials and money expended on the Co-operative’s common property (including with respect to any “personal” extension to the main building) whilst a member. The appellant conceded as much during the hearing of the appeal.
During the appeal hearing, substantial time was spent in endeavouring to narrow down the issues between the parties. A roving commission enquiring into the parties’ conduct towards each other over the years was simply not feasible nor called for either at the trial or at the appeal. As a consequence of the manner by which the trial was conducted and the nature of the evidence adduced before the Magistrate, a number of the appellant’s grievances, perceived or real, were simply not capable of resolution.
By the conclusion of the oral argument, the issues to be determined on appeal had been identified as follows.
The first issue concerns the validity, or otherwise, of the purported expulsion of the appellant as a consequence of the motion passed on 15 October 2011. This requires consideration of a number of sub-issues. For the reasons that follow, the appellant fails in her challenge to the validity and enforceability of the expulsion. I will need to give (brief) consideration to the consequences that follow from that finding.
The second issue is whether the Magistrate was correct in finding for the Co-operative with respect to its unclaimed goods cause of action and, if so, whether the orders made in this respect were appropriate. The third issue is whether the Magistrate was correct to dismiss the appellant’s various claims for damages.
The validity of the expulsion motion
The appellant argued before the Magistrate and on appeal to the effect that the Rules of the Co-operative had not been properly observed and that she had been denied procedural fairness at the time of the purported expulsion. The Magistrate reviewed the evidence, such as it was, and rejected this claim. His Honour ruled that the expulsion had been validly effected and the appellant had ceased to be a member from 15 October 2011.[11]
[11] Magistrate’s Reasons at [54].
However, at the commencement of the appeal hearing, I raised with the parties the question whether the Magistrate had jurisdiction to rule on the validity of the purported expulsion. I sought submissions on this issue.
In Roberts T/A Contract Refrigeration Services v Kowshu Enterprises Pty Ltd,[12] Wicks J identified the nature and content of the jurisdiction of the Magistrates Court of South Australia.
The Magistrates Court is entirely the creature of statute, being established under s4 of the Magistrates Court Act 1991. It is a court of record but not a superior court of record. Its correct title is “The Magistrates Court of South Australia” but I have simply referred to it as the Magistrates Court for brevity. The court has no inherent jurisdiction: Palmer v Clarke (1989) 19 NSWLR 158 at p166. Its jurisdiction and powers are therefore confined by the metes and bounds of the Magistrates Court Act but subject to any other jurisdiction which might be conferred on the Court by Parliament.
[12] [1999] SASC 158 at [14]. See also, The Registrar of Motor Vehicles v McIver [2014] SASC 51.
The civil jurisdiction of the Magistrates Court is that conferred by and falling within section 8 of the Magistrates Court Act. Section 8 is in these terms.
8—Civil jurisdiction
(1)The Court has jurisdiction—
(a)     to hear and determine an action (at law or in equity) for a sum of money where the amount claimed does not exceed $100 000;
(b)     to hear and determine an action (at law or in equity) to obtain or recover title to, or possession of, real or personal property where the value of the property does not exceed $100 000;
(c)     to hear and determine an interpleader action where the value of the property to which the action relates does not exceed $100 000;
(d)     to grant any form of relief necessary to resolve a minor civil action.
(2)The parties to an action may waive any monetary limit on the civil jurisdiction of the Court, and, in that event, the Court will have jurisdiction to determine, the action without regard to that limitation.
In addition, the Magistrates Court has such civil jurisdiction as might be conferred upon it by statute. Section 10 provides as follows.
10—Statutory jurisdiction
(1)The Court has any jurisdiction conferred on it by statute.
(1a)The Court, in its Civil (Consumer and Business) Division, has—
(a) jurisdiction to hear and determine an application under Part 4 or Schedule 3 of the Second-hand Vehicle Dealers Act 1995; and
(ab) jurisdiction to hear and determine an application under the Retail and Commercial Leases Act 1995; and
(b) jurisdiction to hear and determine an application under Part 5 of the Building Work Contractors Act 1995; and
(c) any other jurisdiction conferred on that Division by statute.
(1b)Nothing prevents the Court, in its Civil (Consumer and Business) Division (whether constituted of a judicial officer or officers or sitting with assessors), from exercising civil jurisdiction other than that referred to in subsection (1a) in order to promote the convenient disposal of proceedings by the hearing together of different causes of action or claims.
(2)The rules may assign a particular statutory jurisdiction (other than a statutory jurisdiction specifically assigned by or under another Act to a particular Division of the Court) either to the Civil (General Claims) Division, or to the Criminal Division, of the Court.
There are various statutes which do in fact confer specific jurisdiction on the Magistrates Court. However, the purported exercise by the Magistrate of power to make a declaration as to the validity of the expulsion motion does not fall within the jurisdiction conferred on the Magistrates Court by section 8, nor is there any specific statutory grant of such a power.
There are other sections of the Magistrates Court Act which bear on the jurisdiction that has been conferred on the Magistrates Court such as, for example only, sections 10A (minor civil actions), 25 (the power to grant an interim injunction in circumstances), 26 (the power to make a restraining order in circumstances), 32 (the power to grant declaratory relief in circumstances). However, there are no provisions in the Act which can be said to confer the jurisdiction presently under consideration.
The relationship that arose as a result of the appellant becoming a member of the respondent Co-operative is governed by the Co-operatives Act.[13] Part 4, Divisions 4, 5 and 6 (section 83 to 100) of the Co-operatives Act expressly confers power on the Supreme Court with respect to applications to determine the rights and obligations of members of a co-operative registered under the Act. Importantly, there is no conferral of such power on the Magistrates Court.
[13] This Act was repealed and replaced by the Co-operatives National Law (South Australia) Act 2013 (SA) which commenced its operation on 22 May 2015. As such, the parties relationship as at the time of the purported expulsion resolution (October 2011) is still to be regulated by the terms of the Co-operatives Act 1997.
Those provisions disclose a legislative intention to cover the field in this respect. Specifically, there is no conferral, by this or any other statute, of jurisdiction on the Magistrates Court to resolve a dispute concerning the validity of a membership expulsion motion.
The approach I have taken to this issue is consistent with the obiter dictum of Lander J (with whose reasons Prior and Bleby JJ agreed) in Sherriff v Dudley.[14]
An example of the recent conferral of exclusive statutory jurisdiction on the Supreme Court is contained in the Associations Incorporation (Miscellaneous) Amendment Act 1997. Section 24A of that Act provides for an application to this Court to vary the rules of an incorporated association. (See also s 41B of the same Act.) Section 309 of the Co-operatives Act 1997 provides for the winding up of a co-operative by the Supreme Court. On the face of the Co-operatives Act the Supreme Court has exclusive jurisdiction. They are two examples of Parliament investing this Court with exclusive jurisdiction at first instance, subsequent to the proclamation of the District Court Act.[15]
[14] [2000] SASC 324 at [49].
[15] And I would interpolate subsequent to the proclamation of the Magistrates Court Act 1991.
The Magistrate’s finding[16] to the effect that the purported expulsion process was validly conducted and that the appellant had ceased to be a member of the Co-operative as of 15 October 2011 was, at least insofar as the appellant’s status as a member is concerned, without power and should be set aside. I leave aside the question of whether or not the Magistrate, in the circumstances, had an implied power to make a finding of fact as to the appellant’s membership status for the purpose of and insofar as may be relevant to the determination of the tort claims brought by the appellant, which claims were within the power of the Magistrates Court to determine.
[16] Magistrate’s Reasons at [54].
In the circumstances, it would not be appropriate to give consideration to whether or not the Magistrate correctly found, on the evidence before him, that the Co-operative had abided by the relevant rules and had afforded the appellant natural justice leading up to and in passing the expulsion motion.
My conclusion on this issue does not advance the appellant’s case. The immediate consequence is that the expulsion resolution, as passed by the Co-operative and registered with the OCBA, remains in place. Whilst the expulsion motion, as registered, remains in place the appellant’s membership has been terminated.
In this matter, I am hearing an appeal from the Magistrates Court in accordance with the power conferred by section 40 of the Magistrates Court Act and rule 286 of the Supreme Court Civil Rules 2006. Importantly, I am not exercising the original jurisdiction of a Supreme Court Judge. It would not be appropriate for me to hear an appeal on the merits (by way of re-hearing) from a decision made by the Magistrates Court that was made without power. Ordinarily, I would set that decision aside as I have indicated I will do. Thereafter (and subject to any time limitation or any procedural estoppel that might apply) the appellant would be at liberty to commence proceedings before a single Justice of this Court, in its original jurisdiction, seeking to have the expulsion resolution set aside on the grounds originally agitated before the Magistrate. An appeal would lie from any decision to the Full Court.
The appellant’s membership status and possible approaches that might be adopted to resolve it were canvassed at some length with the parties during the hearing of the appeal. Both parties were anxious for me, if at all possible, to resolve the question of whether or not the expulsion motion had been validly passed.
Counsel for the Co-operative invited me to accept from the appellant an oral application in the original jurisdiction of this Court and pursuant to section 84 of the Co-operatives Act to determine the question of the validity of the appellant’s purported expulsion. I was invited to determine this question on the basis of the evidence that had been placed before the Magistrate insofar as I was in a position to do so. The appellant joined in the request that I should pursue this process.[17]
[17] See generally transcript 161-163 of the appeal hearing, 31 August 2016.
I have given this possibility anxious consideration. In all of the most unhappy circumstances of this matter and in the event that the appellant were to insist on pressing the issue, some six years after relevant events, it would be in the parties’ interests to achieve clarity as to the nature of their relationship. Nonetheless, I am not prepared to exercise any original jurisdiction that may be available to me in order to consider whether or not the Co-operative’s Rules were properly observed, including whether the appellant was afforded natural justice leading to her purported expulsion. These were matters upon which the parties adduced oral evidence and a number of issues involving credit and reliability considerations were canvassed before the Magistrate. I am conscious of the usual advantages the Magistrate had in hearing and seeing this evidence given and the constraints on appellate review in this respect as explained in Fox v Percy.[18] By analogy, these considerations remain apposite were I to rely on the evidence before the Magistrate in order to make my own original findings of fact. It would not be appropriate for me to make my own original findings relevant to these questions without having heard the evidence myself. I refuse to entertain the appellant’s oral application.
[18] [2003] HCA 22; (2003) 214 CLR 118 at [23], [25]-[29] and [41].
However, during the argument on this matter, a discrete issue concerning the validity of the expulsion motion arose for the first time. This is the question of whether or not the mandatory requirements under the respondent’s Rules and the Co-operatives Act, requiring the relevant motion to have been passed by a two-thirds majority of votes by members, had been observed.
The parties are, to all intents and purposes, sufficiently agreed as to the factual basis relevant to this issue. The answer depends upon a short, although not straightforward, question of construction. Given that I am not prepared to hear an original application as part of these proceedings to determine the appellant’s membership status, any view I might express on this discrete issue will not be determinative of that question. However, the discrete question was argued and it is likely to be of assistance to the parties if I do express my view on the construction point.
The expulsion of members from the Co-operative is governed by rule 8 of the Co-operative’s Rules which is in these terms.
8.     Expulsion of members
(1)     A member may be expelled from the co-operative if the co-operative by special resolution determines that the member should be expelled on the ground that –
(a)the member has failed to discharge the member’s obligations to the co-operative under the Act or these rules;
(b)the member has acted in a manner that has –
(i)prevented or hindered the co-operative in carrying out any of its primary activities; or
(ii)brought the co-operative into disrepute; or
(c)the member has acted in a manner contrary to any of the co-operative principles and in so acting caused the co-operative harm.
(2)     The member must be given at least 28 days written notice of the proposed resolution and of the date, time and place of the meeting at which the resolution will be moved.
(3)     The procedure at the general meeting to consider the proposed resolution is as follows –
(a)the member must be given a reasonable opportunity to be heard at the meeting;
(b)the member is entitled to call witnesses and to cross examine witnesses called against the member;
(c)if the member fails, without reasonable excuse, to attend at the time and place of which notice has been given, the co-operative may consider the matter in absence of the member;
(d)after considering the matter, the co-operative may by special resolution determine to expel the member.
(4)     The expulsion of the member does not take effect until the special resolution is registered with the Commission. [s.191]
(5) When a member is expelled, the co-operative must, in accordance with section 77 of the Act, repay to the member an amount determined in accordance with that section in respect of the member’s shares and cancel the member’s shares.
A special resolution is a resolution which satisfies the requirements of rule 35.
35.     Special and ordinary resolutions
(1) special resolution is a resolution which is passed in accordance with sections 187 and 188 of the Act –
(a)by a two-thirds majority at a general meeting of members; or
(b)by a two-thirds majority in a postal ballot (other than a special postal ballot) of members; or
(c)by a three-quarters majority in a special postal ballot of members.
(2)     An ordinary resolution is a resolution passed by a simple majority at a general meeting or in a postal ballot by members.
(3) A special resolution has effect from the date that it is passed unless it is required to be registered by the Commission under section 191(2) of the Act.

No postal ballot or special postal ballot was conducted. The Co-operative conducted a meeting purportedly in compliance with rule 8(2) and (3) and maintains that the vote there taken complied with rule 35(1)(a).
According to sub-rule (1)(a) the special resolution in question must be passed “at a general meeting”. However, the reference in sub-rule (1)(a) to a two-thirds majority, read in isolation, is incomplete or at best ambiguous. It does not expressly identify the body of votes with respect to which there must be a two-thirds majority in favour of the motion. Nevertheless, and by its terms, sub-rule (1)(a) must be read together with sections 187 and 188 of the Co-operatives Act; a special resolution is a resolution passed “in accordance with [those sections]”. They are in these terms.
187—Special resolutions
(1)A special resolution is a resolution of a co-operative which is passed—
(a)     by a two-thirds majority at a general meeting of members; or
(b)     by a two-thirds majority in a postal ballot (other than a special postal ballot) of members; or
(c)     by a three-quarters majority in a special postal ballot of members.
(2)A special resolution may be passed by a postal ballot only if the rules of the co-operative so permit or this Act requires the special resolution to be passed by postal ballot (including a special postal ballot).
(3)A resolution is not to be considered to have been passed as a special resolution unless not less than 21 days notice has been given to the members of the co-operative specifying—
(a)     the intention to propose the special resolution; and
(b)     the reasons for the making of the special resolution; and
(c)     the effect of the special resolution being passed.
(4)A co-operative must give at least 28 days notice to the Commission of a proposed special resolution before giving notice to the members of the proposed special resolution.
Maximum penalty: $2 000.
(5)A failure to give notice to the Commission under subsection (4) does not affect the validity of the resolution.
188—How majority obtained is ascertained
(1)A resolution is passed by a particular majority at a meeting if that majority of the members of the co-operative who, being entitled to do so, vote in person or (if proxies are allowed) by proxy at the meeting vote in favour of the resolution.
(2)A resolution is passed by a particular majority in a postal ballot if that majority of the members of the co-operative who, being entitled to do so, cast formal votes in the postal ballot vote in favour of the resolution.
It can be seen that paragraphs (a), (b) and (c) of section 187(1) in effect replicate corresponding paragraphs in rule 35. The form of special resolution relied upon by the Co-operative is that set out in paragraph (a). The Co-operative maintains that, at the meeting held on 15 October 2011, the votes in favour of the expulsion motion constituted a two-thirds majority as required by rule 35 and sections 187 and 188. The appellant contends, albeit with some encouragement from the bench during the hearing, that, on a proper construction of these provisions, a two-thirds majority was not achieved. Critical to the debate is the proper construction of section 188(1).
The uncontested facts are that eight members of the Co-operative, entitled to vote, were present at the meeting when the motion to expel the appellant was debated and voted on. By email dated 13 September 2011, the Co-operative had invited members who were unable to attend this meeting to email their vote. Six members emailed a vote in favour of the expulsion motion and these votes were recorded in the minutes for the meeting. The final vote on the resolution was recorded as 12 votes in favour and two votes against. The 12 votes in favour included six votes from members present at the meeting and six votes from members who had emailed a vote.
The question which arose during the appeal hearing and upon which I received submissions was whether, in order to have the status of a special resolution under rule 35(1)(a) and section 187(1)(a), it was sufficient for the expulsion resolution to have been passed by a two-thirds majority of those members present at the general meeting who voted or whether a two-thirds majority of the total membership entitled to vote was required. In the event that the latter was correct (as contended for by the appellant), I would need to know the total number of members of the Co-operative entitled to vote on such a motion as at the date of the meeting in order to reach a conclusion as to whether rule 35(1)(a) had been complied with.
I invited the parties to provide further evidence on this issue in writing. It was anticipated that relevant membership details would readily be ascertained and an agreed position provided. Unfortunately, this did not turn out to be so. The appellant submitted that the number of members in existence and entitled to vote comprised a larger cohort than that as submitted by the respondent.
As it happens, the numbers do not matter. On my view of the correct construction of rule 35(1)(a) and section 188(1) there is no need to have regard to total membership; only the number of members entitled to vote and who attended the meeting and voted is relevant. However, if I were to be incorrect in this respect, whether the total membership entitled to vote is that propounded by the appellant or the lesser number propounded by the respondent, a two-thirds majority of that number was not achieved. It would follow that, if the appellant’s contention as to the proper construction of section 188(1) were to be upheld, the expulsion resolution failed because the two-thirds majority would not have been achieved. It would follow that the appellant was not validly expelled and at all material times has remained a member of the Co-operative.
Nevertheless, the appellant’s contention is to be rejected. The “particular”, that is, two-thirds majority in section 188(1) refers to a two-thirds majority of those entitled to vote who were present and voted at the meeting. I set out again the critical wording.
A resolution is passed by a particular [two-thirds] majority at a meeting if that [two-thirds] majority of the members of the co-operative who, being entitled to do so, vote in person or (if proxies are allowed) by proxy at the meeting vote in favour of the resolution.
At this point, reference should be made to rule 33(1) of the Co-operative’s Rules which provides as follows.
Voting must not be by facsimile or electronic means.
[emphasis supplied]
Accordingly, the six votes provided by email are to be ignored unless they can be said to satisfy the requirements relevant to voting by proxy. According to rule 32(2):
Voting may be by proxy [s.176]
Section 176 of the Co-operatives Act sets out the requirements for a valid vote by proxy. It has not been submitted on behalf of the Co-operative that any of the email “votes” satisfy the requirements for a vote by proxy.
Returning to section 188(1) and when the wording relevant to the alternative of voting by proxy is removed, the subsection reads as follows.
A resolution is passed by a particular [two-thirds] majority at a meeting if that [two-thirds] majority of the members of the co-operative who, being entitled to do so, vote in person ... vote in favour of the resolution.
On a plain and grammatical reading of that provision, the starting point is to identify the number of members who, being entitled to do so, vote in person. One then looks to see if the required particular majority (in this case, two-thirds) has voted in favour of the resolution.
In this respect, the critical phrase is the phrase “being entitled to do so” and the question arises as to what the word “so” in “to do so” refers to. This form of expression can be used as a shorthand reference to something that has already been identified or as a shorthand reference to something that is later to be identified in the sentence in question. In this case, there is nothing prior to the phrase “being entitled to do so” to which the words “to do so” might refer. The reference can only be to an entitlement to vote in person (or by proxy) at the meeting. It is from this group that a two-thirds majority of votes in favour of the resolution must be obtained. In other words, the qualifier “that [two-thirds] majority of the members of the co-operative” does not refer to such a majority of all members entitled to vote, but all members entitled to vote in person (or by proxy) and who in fact vote.
The language of section 188(1) is in materially the same terms as that employed in the old uniform Companies Acts for the definition of a special resolution for the purposes of that legislation.[19] For example, section 144(1) of the Companies Act 1962-1974 (SA) provided as follows.
A resolution of a company shall be a special resolution if it has been passed by a majority of not less than three-fourths of such members of the company as, being entitled so to do, vote in person or, where proxies are allowed, by proxy, at a general meeting of the company of which not less than twenty-one days’ notice ...
The same point of construction arises on this language. This provision which was standard across the Companies legislation in the UK and States and Territories of this country in the past has always been construed in the manner that I have construed the cognate language as used in section 188(1) of the Co-operatives Act.[20]
[19] Under the Corporations Act 2001 (Cth) adopted in all States and Territories, a different definition for special resolution is now to be found in section 9 of that Act. Whilst the language is quite different, the effect is the same, that is, the special majority (in this case, 75 per cent) of votes required is to be measured against “the votes cast by members entitled to vote on the resolution” (emphasis supplied).
[20] See, generally, for example, Palmer’s Company Law vol 1, 24^th ed, Schmittoff and others, Stevens & Sons, 1987 at 858-861, Company Resolutions, 4^th ed, S R Brown, Law Book Co Ltd, 1982 at 12 and The Law of Meetings, Clyne at 223.
Conclusion on the membership question
The Co-operative has in its favour an expulsion motion duly passed more than five years ago on 15 October 2011 and which was registered with the OCBA on 21 October 2011. Notwithstanding that the Magistrate’s findings as to the validity of the expulsion motion are to be set aside for want of jurisdiction, the appellant has not succeeded in having the expulsion motion itself set aside. According to rule 8(4) and section 191 of the Co-operatives Act.
The expulsion of the member does not take effect until the special resolution is registered with the Commission.
The Commission is defined in the Rules to be the “Corporate Affairs Commission”. After the adoption by the Co-operative of its Rules, the responsible entity in this respect became the OCBA. In any event, I am satisfied that following passage of the resolution and its registration and unless and until the resolution were to be set aside, the appellant ceased to be a member as at 21 October 2011.
As earlier indicated, it may be open to the appellant to commence fresh proceedings challenging the expulsion resolution on natural justice grounds or otherwise, although I express no view on this matter either way. However, and if so, she may well be confronted with time limitation or procedural estoppel difficulties in doing so. Further, given the irretrievable breakdown of the relationship there would appear to be little to be gained thereby, whereas the ongoing significant stress, anxiety and expense for all concerned would be further exacerbated. In any event, if the appellant were to succeed in having the expulsion resolution set aside on procedural grounds there would be nothing to stop the Co-operative from taking new and appropriate steps to expel the appellant from membership.
I turn now to consider the Co-operative’s unclaimed goods claim and the appellant’s claims for damages.
The unclaimed goods claim
The Co-operative has found itself in an extremely difficult position. On the Kuitpo property is a very large quantity of the appellant’s property some of which has been earlier described. The vast bulk of it has been exposed to the elements over a number of years and has deteriorated to the point of uselessness. The Magistrate heard evidence concerning the nature of the property and also examined it at a view. His findings included the following.[21]
It must be noted that Ms Tait vacated the premises some seven years before the trial and many of her possessions have been exposed to the elements throughout that time. Others had rotted or been damaged by rodents. The consequence, mainly that many of Ms Tait’s items of personal property have been damaged beyond economic repair and, in fact, are worthless, is a consequence of her own neglect. Members of the plaintiff gave evidence, and I accept, that they placed certain items as best they could out of the weather. On several occasions they requested Ms Tait collect her items, however for many years she did nothing. She is to a large extent the author of her own misfortune.
His Honour noted from the view that “the possessions the subject of Ms Tait’s claim were either rotted or rusty and weather damaged”.[22] The appellant has not demonstrated any basis to challenge these findings.
[21] Magistrate’s Reasons at [20].
[22] Magistrate’s Reasons at [45].
It is evident that the continued presence of the appellant’s personal property on the Kuitpo property is a health hazard, a fire risk and likely to diminish appreciably the amenity of the Kuitpo property for the Co-operative’s members. The situation cannot be allowed to continue.
It is essentially for these reasons that the Co-operative has been extremely anxious to rid itself of the appellant’s personal property and also to demolish the dilapidated partly completed extension to the main building which the Magistrate described as “an eyesore and not habitable” and found to be of no value.[23] Again, the appellant has not demonstrated any basis to challenge these findings.
[23] Magistrate’s Reasons at [57].
As to the latter, the Co-operative is entitled to deal with the incomplete extension as it sees fit. It is (as was conceded by Ms Tait) a fixture and forms part of the Kuitpo property of which the Co-operative is registered proprietor. Should there be any question of compensation to the appellant, such would raise different issues independent of whether or not the incomplete extension structure should remain. However, the appellant’s personal property, and notwithstanding that its continued presence on the Kuitpo property constitutes a trespass to the Co-operative’s land, raises different considerations. Notwithstanding the trespass, it still remains the property of the appellant and before taking steps to remove the property by way of sale or, more likely, disposal by removing it to a landfill tip or recycling environment, the Co-operative has sought to obtain the protection available following compliance with the requirements of the Unclaimed Goods Act.
In order to understand the Co-operative’s claim under the Unclaimed Goods Act and the Magistrate’s approach to resolving it, it is necessary to explain, in brief, the procedure required by the Act. The procedure under the Unclaimed Goods Act applies only with respect to goods that are to be characterised in accordance with the requirements of section 5 as “unclaimed goods for the purposes of [the] Act”. Section 5(1)(c) is in the following terms.
(1)Where a person (the bailee) is in possession of goods belonging to another (the bailor), those goods are unclaimed goods for the purposes of this Act—
...
(c) if there is no agreement or understanding governing the collection or delivery of the goods but the bailee has requested the bailor to collect the goods and the bailor has refused to do so or has, at the expiration of 42 days from the date of the request, not done so.
The appellant’s goods under consideration in this case do qualify as “unclaimed goods”. The factual propositions (established by the evidence) and legal propositions which support this conclusion can be reduced to the following.
(i)At all material times, and whether or not the appellant was a member of the Co-operative, any lawful entitlement to bring and keep personal property on the Kuitpo property depended on whether or not permission to do so had been granted by the Co-operative as registered proprietor of the Kuitpo property.
(ii)There is no documentation in evidence before the Magistrate that could be said to constitute a written permission (licence) for this purpose.
(iii)It can be inferred from the conduct of the members over many years that the Co-operative, from time to time, impliedly gave permission to its members to keep personal property on the Kuitpo property.
(iv)This can only be understood as an implied licence capable of being revoked.
(v)By verbal statements of request by other members and Directors of and on behalf of the Co-operative at times during and after 2009 and, at the latest, by letter dated 9 October 2012, any such licence in favour of the appellant was withdrawn. That letter was in these terms.
Removal of your possessions
We request that, by 26 November 2012, you remove all your possessions from the Village Community Co-operative property at 67 Adams Gully Road, Kuitpo 5172 (formerly known as RSD 1530 Adams Gully Road, Hope Forest 5172). These possessions include, but are not limited to:
·    2 caravans (and their contents)
·    1 shipping container (and its contents)
·    1 vehicle (blue Ford utility)
·    building material
·    contents of the incomplete structure (including furniture, building materials)
·    contents of the mud-brick bedroom previously occupied by you (these items are now stored in the incomplete structure & include clothes, furniture, personal effects)
These items may be collected between 10am & 4pm on any Wednesday, Thursday or Friday between now and 26 November 2012, however, we request that you confirm a time before coming to the property. If these time-frames are not achievable, we may be willing to negotiate an alternative, if we receive notice of this before 15 October 2012.
After 26 November 2012, if your belongings have not been collected, Village Community Co-operative will charge a storage fee of $45 per week until they have been removed or disposed of. In addition, any costs incurred by Village Community Co-operative in proceeding under the Unclaimed Goods Act, 1987 may be passed on to you. This may include, without being limited to, costs associated with: lodging a claim with the court; sale or disposal of goods.
Payments to Village Community Co-operative
Insurance: As per our email of 19 June 2012, the new Village policy from 1 July 2012 does not include your belongings, hence you are not required or requested to make any payments to Village in respect of insurance. Any payments made by you will be considered a contribution towards lessening your debt to the Co-operative.
Administration: As of your expulsion from the Co-operative on 15 October 2011 you are not liable for admin payments. Any payment made will be deducted from your debt.
Village service fee: As your belongings are no longer preventing the use of the mud-brick bedroom by others you are no longer liable for Village service fee ($200 per month for non-members). Any payment made from the date of this letter will be considered as a reduction of your debt to the Co-operative. See attached invoice.
(vi)At all material times after 2009, in the circumstances where the appellant was no longer living on the Kuitpo property and only visiting on a sporadic basis, if at all, the Co-operative was in the position of an involuntary bailee in possession of the appellant’s personal property in question.
(vii)There is no evidence of any agreement or understanding governing the collection or delivery of the property in question and the Co-operative as bailee requested the appellant as bailor to collect the property in question by its letter of 9 October 2012 (vide section 5(1)(c)).
(viii)The appellant failed to collect the personal property in question at or after the expiration of 42 days from the date of the letter.

In order to satisfy the requirements in section 5(1) necessary to a finding that any personal property under consideration is “unclaimed goods”, the request referred to in section 5(1)(c) must itself be of a nature that satisfies certain requirements as set out in section 5(2) and (3). There is no suggestion in the evidence or on the part of the appellant that those requirements were not met and on my review of the evidence I am satisfied that they were.
Section 6 provides that a bailee of unclaimed goods may, after the expiration of three months from the relevant date, that is, the date on which the goods became unclaimed goods for the purposes of the Act, sell or dispose of the goods in accordance with the various requirements set out in section 6. In this case, the relevant date was on or about 19 November 2012 being the date the goods became unclaimed goods for the purposes of the Act (being 42 days after the date of the request, 9 October 2012). As such, the Co-operative was entitled after the expiration of three months thereafter to take steps available to it under section 6 in order to sell or otherwise dispose of the goods.
However, the Co-operative has operated on the assumption, at least for the purposes of the Unclaimed Goods Act, that the personal property in question may have a value of $500 or more.[24] As such, section 6(2) requires that the goods in question must not be sold or disposed of without first obtaining court authorisation following an application by the Co-operative. The Co-operative filed its application for relief under the Unclaimed Goods Act, that is, for authorisation to sell or dispose of the goods, on 8 March 2013, that is, more than three months after the relevant date. It was this application that came before the Magistrate.
[24] Although neither the Magistrate nor I have made any finding to that effect; the tenor of the Magistrate's findings is to the contrary.
Section 6(4) provides as follows.
Where the Court grants an authorisation under subsection (2), it may give such directions in relation to the sale or disposal of the goods as it thinks fit.
Section 7 of the Unclaimed Goods Act provides, in effect, that where a bailee has commenced proceedings for the sale or disposal of goods, as in this case, but before the goods are sold or disposed of, the bailor “claims the goods”, the bailee must not proceed with the sale or disposal but must hand the goods over to the bailor. Section 7(2) provides that the bailee may before handing over the goods require the bailor to pay reasonable costs incurred in proceeding under the Act, incurred in storing and maintaining the goods after the date on which the bailor should have collected or taken delivery of them and the amount of any lien the bailee has over the goods. Section 7(3) provides, in effect, that if at the expiration of 42 days after the bailee has rendered a written account of these amounts the bailor has not paid the account, the bailee may then proceed to sell or dispose of the goods. Section 7(4) provides the bailor with an opportunity to apply to the court for a review of any account rendered by the bailee.
In the present case a number of these steps appear to have been conflated as a consequence of the approach taken by the parties and the decision of the Magistrate and it would seem justifiably so.
The Magistrate found[25] that Ms Tait had made a claim on the goods since the commencement of the proceedings before his Honour and, it is to be inferred, that section 7 had to be complied with before the Co-operative would be entitled to sell or dispose of the unclaimed goods in question.
[25] Magistrate’s Reasons at [56].
On my review of the evidence before the Magistrate, the finding that the appellant has maintained a claim over the goods at all material times, including as at the hearing before the Magistrate, was properly arrived at. Having said that, the appellant has made no effort to collect the goods or otherwise have them removed from the property. It cannot be the case that the mere persistence in a claim can indefinitely prevent the bailee, in circumstances such as the present, from ridding itself of the responsibility and risks associated with remaining in possession, involuntarily, of the goods in question. In this respect, the Magistrate appears to have adopted a practical solution which, in my view, and in the very peculiar, perhaps unique, circumstances of this matter was open to him under the legislation, particularly bearing in mind the power available under section 6(4) set out above. His Honour ruled as follows.[26]
(i)The appellant is to collect her goods and chattels and remove them from the land owned by the Co-operative within three months of the date of judgment.
(ii)For this purpose the Co-operative is to allow the appellant reasonable access to the land.
(iii)Any goods or chattels remaining on the land after the period of three months has elapsed shall be sold or disposed of by the Co-operative in accordance with sections 6, 7 and 8 of the Unclaimed Goods Act.
(iv)The Co-operative is entitled to claim up to $400 for storing the goods in addition to the sum of $3,000 representing the value of Ms Tait’s share in the Co-operative which sum shall be deducted from any amount owed by Ms Tait to the Co-operative.
(v)Thereafter any balance from the sale of the goods payable to the appellant shall be paid within 28 days.
[26] Magistrate’s Reasons at [56].
Given that the unclaimed goods in question should have been collected by the appellant by no later than the end of November 2012, a sum of $400 for storage is modest in the extreme. The effect of his Honour’s ruling is that once the stay of his Honour’s orders is lifted, the Co-operative is to allow the appellant three months within which to remove the unclaimed goods in question, failing which it may sell or dispose of the goods in the manner as required by the Unclaimed Goods Act. The Co-operative will be entitled to take these steps whether or not the appellant pays the storage fee.
The Co-operative will be required to account to Ms Tait with respect to any proceeds of sale, should there be any, in accordance with the requirements of the Act and may deduct that storage fee of $400 as part of that process.
As earlier indicated, and according to the Rules of the Co-operative, when the appellant ceased to be a member she was entitled to a refund of $3,000 being the value of her shareholding. However, as I understand the evidence before the Magistrate, the Co-operative claims that the appellant owes the Co-operative amounts by way of unpaid rent or licence fee and unpaid administration fees. In addition there will be a cost to the Co-operative in disposing of the appellant’s goods in the highly likely event that they are not collected within the three months. On her part, the appellant claims that the Co-operative has wrongfully appropriated to its own use monies she did in fact pay towards insurance premiums. It may well turn out that the costs to the Co-operative of disposing of the appellant’s goods will substantially exceed any amounts payable to the appellant. The parties may need to engage in an accounting exercise in the event that either party presses for one. I add that any such accounting will not involve the value, perceived or real, to the appellant of either her goods or the unfinished extension that she maintains she has been deprived of, for the reasons given in this judgment as to why her claims in these respects are to be dismissed. For these reasons, the Magistrate’s order that the respondent is allowed to offset the sum of $3,000 representing the value of the appellant’s shares, in the manner set out in paragraph [56] of his Honour’s reasons, is premature and should be set aside.
Some matters of accounting were ventilated before the Magistrate. However, his Honour made no meaningful findings in this respect from which an appeal might be considered. In any event, it would be premature to engage in any accounting exercise until after the appellant’s goods have been removed or disposed of and the parties are aware of the costs incurred or sale values received thereby. One would expect this to be a matter capable of resolution by agreement in due course.
I ought not leave this section without dealing with the conclusions reached by the Magistrate relevant to the unfinished extension built some years ago by the appellant. His Honour said this.[27]
I accept the view of [the valuer] Mr Taormina that the structures are of no market value. In my view it should be demolished. It is an eyesore and not habitable. The material from which it is constructed should be made available for collection or removal by Ms Tait within three months of the date of this judgment. Any such material remaining on the land after the period of three months has elapsed shall be sold or disposed of by the Co-operative and the proceeds of such sale are to be deducted from the cost of dismantling the structure and disposing of the material. Any balance is to be paid to Ms Tait.
[27] Magistrate’s Reasons at [57].
As I have already indicated his Honour’s findings of fact in this passage were open on the evidence and should not be disturbed. However, his Honour’s reasons do not disclose a proper basis for making the rulings in this paragraph. As I have indicated, the unfinished extension forms part of the main building and, as accepted by the appellant, has been constructed in a way that renders it a fixture and part of the Co-operative’s land. The Co-operative owns it. As such, it is a matter for the Co-operative as to what it does with the unfinished structure. The materials used in the building of the unfinished extension apart from any that are freestanding and not part of the fixture are not unclaimed goods captured by the Unclaimed Goods Act. There is no basis for an order requiring demolition or that the Co-operative be obliged to sell constituent materials or that the Co-operative be obliged to make the constituent materials available for collection or removal by the appellant or that the difference between any proceeds of sale and the costs of demolition are to be paid to the appellant (although the respondent may choose to do any of these things). I would set aside the orders expressly or impliedly contained within this paragraph of his Honour’s judgment.
The appellant’s claims by counter-claim
The appellant relied on the following causes of actions before the Magistrate: conversion, trespass to property, battery and negligence.
Conversion
The appellant, by her counterclaim filed on 17 March 2014, alleges that the Co-operative “intentionally, forcefully, repeatedly and without lawful justification” interfered with the appellant’s “food, finances and chattels”. The particulars of the appellant’s claim include the following.
47.1 seized possession and control from the Defendant of the Defendant’s assets on 20^th January 2009, inconsistent with the Defendants right to possession and control; and
47.2made changes that they saw fit, that were detrimental to the Defendant and her assets; and
47.3 made changes to the Defendants insurance without her knowledge and consent; and
47.4have sold, disposed of, handled, and rearranged the Defendant’s assets causing loss, deterioration and damage to the items; and
47.5used the Defendants monetary payments to Village for purposes other than intended.
A number of these particulars, as acts of conversion, are misconceived as can be seen from the following remarks by Dixon J in Penfolds Wines Pty Ltd v Elliott.[28]
The essence of conversion is a dealing with a chattel in a manner repugnant to the immediate right of possession of the person who has the property or special property in the chattel. It may take the form of a disposal of the goods by way of sale, or pledge or other intended transfer of an interest followed by delivery, of the destruction or change of the nature or character of the thing, as for example, pouring water into wine or cutting the seals from a deed, or of an appropriation evidenced by refusal to deliver or other denial of title. But damage to the chattel is not conversion, nor is use, nor is a transfer of possession otherwise than for the purpose of affecting the immediate right to possession, nor is it always conversion to lose the goods beyond hope of recovery. An intent to do that which would deprive “the true owner” of his immediate right to possession or impair it may be said to form the essential ground of the tort.
[28] (1946) 74 CLR 204 at 209.
Further, on my review of the evidence, concerning the conduct by other members of the Co-operative with respect to the appellant’s personal property, it does not support a finding that there have been dealings with the appellant’s goods in a manner repugnant to her immediate right to possession. The contrary is the case. Her immediate right to possession has at all material times been recognised. There has been no disposal of the goods, no destruction or damage proved to have been caused by any acts of a member or any refusal to deliver up. Specifically, the evidence does not support a finding of any intention to deprive the appellant of her immediate right to possession.
The Magistrate’s reasons contain the following.[29]
Ms Tait claimed $64,250 for damage and loss of property. She claims, under the heading ‘Conversion’, that the plaintiff members made changes to her assets and sold, disposed of, handled and rearranged her assets causing loss, deterioration and damage. She has presented a list of chattels which she says were left at the premises, together with evaluation of each item. She has also presented photographs of the interior of her premises depicting some of those items at some time prior to her leaving the premises.
I accept that the list represents, to the best of Ms Tait’s recollection, items that she had at the premises. I cannot accept, in the absence of any substantiation, the values attributed to those items as those values do not take into account the condition of the items, the age of the items and do not represent the value of the items at the time of trial.
I also accept that some of the items were moved by members of the Village. Witnesses for the plaintiff had admitted as much, but say they moved some items in the interests of safety, or in an attempt to protect those items from the ravages of time and weather. In that regard, it must be noted that Ms Tait vacated the premises some seven years before the trial, and many of her possessions had been exposed to the elements throughout that time. Others had rotted or been damaged by rodents. The consequence, mainly that many of Ms Tait’s items of personal property have been damaged beyond economic repair and, in fact, are worthless, is a consequence of her own neglect. Members of the plaintiff gave evidence, and I accept, that they placed certain items as best they could out of the weather. On several occasions they requested Ms Tait collect her items, however for many years she did nothing. She is, to a large extent, the author of her own misfortune. Given the orders that I intend to make concerning the property of Ms Tait, I find that she is not entitled to any damages for loss of property.
[29] Magistrate’s Reasons at [18]-[20].
The various factual findings in the above passages find support in the evidence. They result, at least implicitly, from the Magistrate having a preference for the evidence of the Co-operative’s witnesses when that evidence differed from that of the appellant. Elsewhere in the judgment his Honour has expressly accepted aspects of the evidence of certain of the Co-operative’s witnesses and been unimpressed with the appellant. On my review of the evidence, in particular and bearing in mind the proper approach to be adopted in an appellate review of findings of fact where the credit and reliability of witnesses who gave oral testimony is concerned, I find no reason to disturb his Honour’s findings.
In any event, there are other problems with the conversion claim. For a conversion of goods to be made out, the subject-matter must relate to a tangible object. As such, the appellant’s claims concerning the change to insurance is misconceived. Further, the appellant’s allegation that the Co-operative used her monetary payments for improper purposes and thereby engaged in a conversion is also misguided.
Turning to the issue of the appellant’s access to her belongings, the appellant alleges that the Co-operative took control of the appellant’s possessions after January 2009, when she stopped residing on the Kuitpo property and, as such, are liable for conversion. Again, this contention is misconceived. The Co-operative made repeated attempts to have the appellant remove her property over the many years but the appellant declined to do so in furtherance of her claim to be reinstated as a member of the Co-operative. As I have earlier said, her status as a member or otherwise is unrelated to the Co-operative’s right to withdraw any implied licence to store goods on the Kuitpo property.
Further, any damage to or deterioration of the appellant’s goods was not the fault of the Co-operative but was as a result of inadequate maintenance and storage by the appellant. The Magistrate found that the appellant did not make any meaningful attempt to collect her goods prior to March 2013, when the Co-operative filed its claim at the Magistrate Court. The Magistrate was correct to find that the appellant has been the cause of any deterioration to her property.
Finally, the appellant has sued the Co-operative. In order to make good any of her claims in tort she would need to identify particular persons as having committed an act or acts of conversion (or trespass to property - see below) and that such person or persons did so with the authority of the Co-operative. The appellant’s evidence was not sufficient to demonstrate this. Insofar as any loss of or damage to her personal property or the unfinished structure is concerned, it is insufficient simply to point to such loss or damage whilst the property was on the Kuitpo property, at least, in circumstances where the Co-operative was an involuntary bailee and dependent on the appellant to rid itself of this enforced responsibility.
For these reasons and those given by the Magistrate, his Honour was correct to dismiss any claim for conversion.
Trespass to Property
I now turn to the appellant’s claim for trespass to property. This claim purports to address alleged damage to the appellant’s extension and other belongings. The appellant claims that the Co-operative, from 2009 onwards, both intentionally and repeatedly, entered and interfered with the appellant’s home.
53.1caused irreparable deterioration and damage to the Defendant’s property;
53.2placed the Defendant in harm’s way;
53.3was done as self help by Plaintiff without any lawful justification when attempts to expel and evict the Defendant failed;
53.4caused the loss of the Defendant’s amenity.
Again a number of these particulars are misconceived and do not support any cause of action known to the law. The Magistrate did make a finding that members of the Co-operative had moved some of the appellant’s belongings. However, according to the Magistrate this did not result in any damage to such goods but was done in order to protect the goods in question.
The movement of the appellant’s belongings without permission can give rise to a trespass to goods. However, in circumstances where the items have been moved in the interests of safety or in an attempt to protect the appellant’s belongings from degradation over time and by weather[30] and where the appellant has left items on the Kuitpo property for several years while no longer residing there, the actions of the members of the Co-operative did not amount to an actionable tort. I am satisfied that there must have been an implied permission to touch and move the goods for the limited purpose of protecting them or safety to occupants. In any event, the evidence does not support a finding that any damage was caused thereby. Caused damage is the gist of a cause of action in tort.
[30] See Magistrate’s Reasons at [20].

The findings by the Magistrate to the effect that the damage to the appellant’s belongings and to her structure was as a consequence of the appellant’s neglect was open on the evidence. The appellant has not lived on the property since January 2009 and both her goods and the unfinished structure were left exposed to the weather and to be damaged by passage of time.
Further, as far as the deterioration over time of the unfinished structure is concerned, the appellant was not the owner thereof nor, since no later than the time of the expulsion, has she enjoyed any right to possession. As such, there can have been no trespass to property with respect to the unfinished structure.
The Magistrate was justified in rejecting the claim for trespass to property.
Negligence
The appellant claims that, pursuant to sections 216 and 217 of the Co-operatives Act, the Co-operative owed the appellant a duty of care and, through its actions relevant to her expulsion, breached this duty owed to her. The appellant alleges the following particulars in support of her claim.
56. At the Resolution conducted by the Plaintiff to expel a member on 15^th Oct 2011 the Defendant;
56.1   was innocent and had not been found guilty of any wrongdoing or breach of the Co-operative’s Act 1997 or Rules as per Rule 8(3)(d); and
56.2   Village Directors and voting members did not consider the matter of her guilt or innocence of charges against her as per Rule 8(3)(d), but assumed the conclusion she was guilty; and
56.3   the Defendant was not allowed to call witnesses in her defence as per Rule 8(3)(b); and
56.4   the effect of the special resolution being passed was not fully disclosed, Rule (26)(4); and
56.5   Robert John Edmeades, Iain Rundle and Susan Hanckel did not abstain from voting after declaring any conflict of interest and after the issues had been discussed, in contravention of s.229(7) of the Co-operative’s Act 197; and
56.6   did not declare their interest and any resultant gain s.229(1) Co-operative’s Act 1997; and
56.7 the Defendant was denied due process and procedural fairness in breach of Rules 8(3)(b), 8(3)(d), 13(1) and 35(1) and under s.217(1), s.218(2) and s.441 Co-operative’s Act 1997.
A claim in negligence in these alleged circumstances is misconceived. The pleading is in reality an agitation of the appellant’s complaint concerning the circumstances of her expulsion as a member. For reasons earlier given, this issue is not properly before me. Further, as the Magistrate found, the appellant did not establish that any compensable personal or psychiatric injury was caused by any such conduct.
Battery
The appellant alleges that, on 18 March 2012, she was approached by one of the members of the Co-operative who had a conversation with her and “when her back was turned ran up and pushed her from behind, intentionally and recklessly, without consent or lawful excuse”. She alleges that, as a result of this incident, she was deterred from “further repairs and maintenance of her belongings”.
As raised with the appellant at the trial by the Magistrate, this is an inappropriate claim to bring against the Co-operative where the actions were undertaken by an individual. This claim also must fail. In any event there has been no proof of compensable damage.
Conclusion
For the foregoing reasons, I would allow the appeal in part. The Magistrate did not formally list his orders. They are to be found intermixed with findings in a number of the judgment paragraphs.
I make the following orders.
(i)The Magistrate’s findings and orders concerning the validity of the expulsion of the appellant in paragraphs [50]-[54] of the Magistrate’s Reasons are set aside.
(ii)Nevertheless, the appellant has not succeeded in having the expulsion set aside and it remains in force.
(iii)The Magistrate’s order permitting the respondent to offset the sum of $3,000 in the manner set out in paragraph [56] of the Magistrate’s Reasons is set aside.
(iv)In all other respects, the Magistrate’s orders concerning the respondent’s unclaimed goods action in paragraph [56] of the Magistrate’s reasons are confirmed.
(v)The Magistrate’s findings and orders concerning the demolition of the incomplete extension in paragraph [57] of the Magistrate’s Reasons are set aside.
(vi)In all other respects, the appeal is dismissed.
(vii)The stay given on 20 June 2016 of the Magistrate’s orders (as now varied) is vacated.
I will hear the parties on the question of costs.