Talbot v Homes North Community Housing Co Ltd

[2021] NSWCATCD 122

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Talbot v Homes North Community Housing Co Ltd [2021] NSWCATCD 122

Hearing dates:

5 November 2021

Date of orders:

8 December 2021

Decision date:

08 December 2021

Jurisdiction:

Consumer and Commercial Division

Before:

P French, General Member

Decision:

(1) The application is dismissed.

Catchwords:

LAND LAW — Residential Tenancies Act 2010 — Whether tenant unlawfully dispossessed of rented premises — Whether landlord liable to pay tenant compensation for household goods disposed of by the landlord on it recovering possession

Legislation Cited:

Residential Tenancies Act 2010 (NSW)

Residential Tenancies Regulation 2019 (NSW)

Uncollected Goods Act 1995 (NSW)

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Katalena Talbot (Applicant)
Homes North Community Housing Co Ltd (Respondent)

Representation:

Northern Aboriginal Tenants Advice and Advocacy Service (Applicant)
R Cook (Senior Client Relations Officer) (Respondent)

File Number(s):

SH 21/35910

Publication restriction:

Nil

REASONS FOR DECISION

Introduction

1. This is an application by Katalena Talbot (the tenant) for orders pursuant to section 187(1)(a) and (b) of the Residential Tenancies Act 2010 (RT Act) that would have the effect of requiring Homes North Community Housing Co Ltd (the landlord) to reinstate her possession of rented premises on the basis that she has been unlawfully dispossessed of those premises. The applicant also applies for an order pursuant to section 187(1)(d) of the RT Act that would require the landlord to pay her $15,000.00 in compensation for household goods she claims the landlord disposed when it unlawfully took possession of the premises. This application was made to the Tribunal on 18 August 2021 (the application).

2. For the reasons set out following the Tribunal is not persuaded that the applicant was unlawfully dispossessed of the premises. The facts establish that the tenant, alternatively, abandoned the premises following the issuing to her by the landlord of a termination notice on the ground of not payment of rent, or that she repudiated the agreement and this was accepted by the landlord. The residential tenancy agreement was thus terminated in accordance with section 81(4)(d) or (g) of the RT Act. The tenant later changed her mind and wanted to reinstate her tenancy, but the landlord had no obligation to agree to this. Nor is the Tribunal persuaded that the landlord disposed of the tenant’s household goods otherwise than in accordance with the requirements of Part 3 of the UG Act upon it recovering possession of the premises. Any loss the tenant suffered is therefore the result of her own conduct in failing to collect her possessions. The application has therefore been dismissed.

Procedural history

3. The application was first listed before the Tribunal in a Group List for Conciliation and Hearing in a Virtual Hearing Room (VHR) on 13 September 2021 in accordance with NCAT’s COVID-19 pandemic Revised Hearing Procedure. Ms Donna Connors, Advocate with the Northern Aboriginal Tenants Advice and Advocacy Service, attended that listing of the application with the tenant. Ms Jodie McNamara, Client Relations Officer, attended the hearing on behalf of the landlord. In accordance with the Tribunal’s usual practice when both parties are present at the first listing of an application, the Tribunal, differently constituted, attempted to assist the parties to resolve the dispute cooperatively. Those efforts were not successful. As a consequence, the application was adjourned to a Special Fixture Hearing and directions were given to the parties for the filing and exchange of the documentary evidence that they intended to rely on at that hearing. Leave was also granted for the tenant to be represented by a tenant advocate.

Evidence

4. Both parties have complied with the Tribunal’s directions for the filing and service of their documentary evidence. The tenant’s bundle was marked Exhibit A1. The landlord’s bundle was market Exhibit R1.

5. The Special Fixture Hearing was conducted by telephone in accordance with NCAT’s COVID-19 Revised hearing procedure. Ms Talbot attended the hearing in person represented by her Tenant Advocate, Ms Connors. Ms Talbot gave oral evidence under a solemn promise to tell the truth. Ms Rianah Cook, who is a Senior Client Relations Officer of the landlord, attended on its behalf. She also gave oral evidence under a solemn promise to tell the truth. The parties had the opportunity to present their respective cases, to ask each other questions, and to make final submissions to the Tribunal.

Material facts

6. The dispute arises from a social housing tenancy agreement that was made on 2 August 2020 in respect of a house in a social housing estate located in Moree. The agreement had an initial fixed term of 6 months duration which was expressed to commence on 3 September 2020 and end on 3 March 2021. It continued as a periodic agreement after the end of the fixed term. The rent payable under the agreement was $170.00 per week.

7. Shortly after the tenancy commenced, the tenant fell into arrears of rent. After issuing several rent arrears warnings and requests for payment that did not result in any resolution of this breach, on 23 March 2021, the landlord served a Notice of Termination of the social housing tenancy agreement on the tenant requiring her to return possession of the premises on 14 April 2021. The ground for termination specified in the Termination Notice was non-payment of rent in breach of clause 3.1 of the social housing tenancy agreement. The Termination Notice was served by post.

8. On 21 April 2021 the landlord filed a Residential Tenancy application with NCAT applying for an order under section 87 of the RT Act (Breach of the Agreement) terminating the social housing tenancy agreement on the ground of non-payment of rent (application no. SH 21/17382). On 22 April 2021 the Tribunal, differently constituted, sitting in chambers, entered consent orders based upon a signed agreement made between the parties on or about that date which settled this dispute up to that point. Relevantly, those consent orders were:

2.   The respondent, Katalena Talbot, [address] is to pay the applicant, Homes North Community Housing, [address] the sum of $1,576.27 by instalments: $50 per fortnight first payment 22/04/2021.

3.   Failure to pay any instalment in this order by the due date will result in the whole of the balance being payable immediately.

…

4.   The tenant is to pay rent, presently $170.00 per week on the Thursday of each week, next payment due 22/04/2020, and once the arrears are paid in full, to continue to pay rent as required by the Residential Tenancy Agreement, always keeping it two weeks in advance.

5.   If the tenant does not keep to this agreement the Landlord may ask the Registrar to relist the application for termination at the tribunal any time between today and up to 21/10/2021 to request the tribunal to order the Tenant to vacate the premises, pay the arrears, or for such other orders to be made as the Tribunal decides.

9. On 28 April 2021 the landlord receipted from the tenant two Centrepay payments of $170.00 and $10.00. On 12 May 2021 the landlord receipted a Centrepay payment from the tenant of $190.00. On 26 May 2021 and 9 June 2021 the landlord receipted direct payments of the tenant in the amount of $20.00 each. No further payments of rent or rent arrears were receipted after that date.

10. The landlord contends that between 26 May 2021 and 3 August 2021 its officers made various attempts to contact the tenant by telephone, letter and by conducting home visits. The tenant was not at home during any attempted home visit, did not answer her telephone, and did not respond to letters or text or voice messages.

11. On 26 June 2021 the tenant contacted the Department of Communities and Justice’s (DCJ) Link2Home statewide homelessness information and referral telephone service to request temporary accommodation stating that she had been asked to leave where she was then staying, that prior to that she had lived with her mother, and that she had not rented in the past two years. This resulted in the DCJ Officer conducting a search of that Department’s HOMES database which revealed that the tenant was a current tenant under a social housing tenancy agreement. When questioned about this, the tenant told the DCJ Officer that she could not live in the property because it smelt of paint. All of this is set out in email exchanges between a Link2Home officer and an officer of the landlord which are in evidence.

12. On 26 July 2021 the landlord made an application to NCAT to relist SH 21/17382 in accordance with Order 5 of the consent orders made in that application on 22 April 2021 (relist application). The Deputy Divisional Registrar subsequently listed the matter for hearing in a Group List for Conciliation and Hearing on 17 August 2021.

13. On 3 August 2021 two officers of the landlord attempted to conduct a home visit to meet with the tenant to discuss the relisted application. When they arrived at the premises they formed the view that it had been abandoned by the tenant. This was reported to a Technical Officer of the landlord who arrived shortly afterward. Together, the officers made the following observations, while completing an “Abandoned Premises Checklist”:

1. Rent had been last paid on 9 June 2021 in the amount of $20.00, and was paid up to 12 May 2021;

2. The front door was open (ajar);

3. The back door was not secured (the latch and lock were either missing or damaged);

4. The water metre was damaged and a tap in the back yard was leaking profusely;

5. The letterbox was full of mail addressed to the tenant. The earliest date stamp noted was 3 July 2021;

6. There were few household goods in the premises, and most of those that were present were damaged;

7. The lawns and grounds were overgrown;

8. The refrigerator was turned off and had decomposing food inside;

9. A lounge room window was broken and there was serious other internal damage to the fabric of the dwelling;

10. It appeared that there had been “squatters” staying inside the property who were using it as a “drug den”.

11. The landlord has submitted a copy of the Abandoned Premises Checklist dated 3 August 2021 and Statutory Declarations made by the three officers which attest to these observations.

14. These observations are also contained in several contemporaneous emails that passed between various landlord officers at the time. One of those emails dating to 5:09pm on 3 August 2021 states in part:

… I made a decision to do a home visit and complete an abandoned checklist. Upon arrival the water metre was running over, when we went around to the rear of the premises there was a serious leaking tap at the rear of the property. And the back door was unsecure. We turned the water off at the main to stop any further water leaking.

When coming back to the front of the property we was assessing the inside of the premises it looked as though there wasn’t much furniture, we then noticed the properties front door was open after seeking your approval we entered the property we then noticed there was damage, holes in walls and bedroom doors, large ceiling hole, ripped window screens (attempted brakes (sic) in so it appears) damage to the back door lock, there appears to be knife holes in a few of the doors and a lot of stab marks to a frame. (see photos attached) there shows drug use within the premises also. There was also a knife in the only bedroom with a mattress. I have attached photos of all the above mentioned concerns.

…

15. Later on 3 August 2021 the landlord’s contractor secured the premises by replacing the locks and instating an alarm system which apparently also included a surveillance device. A Notice in the following terms was also placed in the letterbox of the premises:

HOMES NORTH COMMUNITY HOUSING

3 August 2021

14 Day Notice of Disposal

Homes North Community Housing Pty Ltd hereby gives notice that any uncollected goods in this property may be collected by contacting Homes North on [telephone number]

After 14 days from the date of this Notice, any uncollected goods left on the premises will be disposed of and the costs associated with the disposal will be charged to the tenant.

16. In Ms Cook’s oral evidence, and in the landlord’s submissions, it was stated that the landlord was compelled to act quickly to secure the property because the area in which it is situated is deemed by it to be high risk of damage and arson when properties are not occupied. It was submitted that 12 of 18 social housing properties in the street have been destroyed by vandalism and arson. It is not clear over what period of time.

17. In the course of the evening of 3 August 2021 the premises was broken into. There is CCTV footage (stills) from the security camera installed by the landlord, which show children or young people walking around the premises. The incident was reported to NSW Police. However, apparently no charges were laid due to the age of the persons concerned. It appears that the intruders told NSW Police that they were staying at the premises, had a key, and did not know the locks had been changed and possession of the premises recovered by the landlord. This appears from email correspondence that passed between the Police Constable assigned to the incident and an officer of the landlord.

18. On 3 August 2021 the landlord’s officers took various photographs of the interior and exterior of the premises. On or about that date an End of Tenancy Condition Report was also completed by an officer of the landlord and additional photographs were taken of the premises. In summary, these photographs depict various areas of the premises which have serious damage. They also depict a quantity of household items and clothing strewn throughout the premises. Some dining chairs appear to be intact, but various other items of furniture including a lounge chair appear broken. One photograph depicts a single mattress on a floor covered in a sheet, but there does not appear to be any other bedding. The overall impression created by these photographs is of unoccupied, ransacked and vandalised, premises.

19. On 4 August 2021 the tenant attended the landlord’s North Moree Office and met with staff of the landlord. The tenant advised the landlord’s officers that she was living with her mother because of there was a risk that she would be subjected to domestic violence if she returned to the premises. The tenant was advised by the landlord’s staff that the landlord considered her to have abandoned the premises and that a 14 day Notice of Disposal had been placed at the property in relation to the household goods that remained there. The tenant requested the opportunity to attend the premises to collect some possessions she believed to be still present there. An arrangement was made for the tenant to meet with an officer of the landlord at the premises on 5 August 2021 at 12:30pm subject to the tenant confirming with the landlord’s officer by telephone that she would have transport to carry away the goods.

20. In the course of her meeting with the landlord’s officer on 4 August 2021 the tenant completed two forms being an “Arrears Repayment Plan Agreement” and a consent form authorising the landlord to make $100.00 deductions from her parenting payment each fortnight towards her rent arrears “debt” which as of that date stood at $3,746.03. I note that neither form contains any reference to current rent payment. The first instalment was to be deducted on 20 August 2021, however, by that date the tenant had withdrawn authority for the deduction to be made. It is not in issue that no payment of any description has been made by the tenant to the landlord since 9 June 2021 up to the date of the hearing.

21. The tenant contacted the landlord’s officer on 5 August 2021 to advise that she had to reschedule collection of her goods to 6 August 2021 as she did not have assistance with transport until then. However, the tenant did not arrange a time for 6 August 2021, and the landlord’s officer made several attempts to contact the tenant to make such an arrangement but none of those calls were answered.

22. Although not entirely clear on the evidence, it appears that shortly after taking possession of the premises the landlord deployed contractors to the site to secure it and undertake substantial renovations. These contractors remained on site for several weeks.

23. Sometime on 5 August 2021 a group of people, including, apparently, the tenant, approached contractors who were working on the premises and demanded that they be given the keys, as they were “taking the property back”. The contractors refused to do so, directing the group to contact the landlord directly. The group later returned to the site claiming to the contractors that the landlord had directed that they should hand over the keys. The contractors refused to do so.

24. On 6 August 2021 the tenant, with the assistance of the Northern Aboriginal Tenants Advice and Advocacy Service issued a written demand to the proper officer of the landlord which stated in part:

Re: Lockout at [address]

You have entered and changed the locks on the doors to stop me from re-entering the above premises

I demand that you immediately provide me with new keys so that I can re-enter the premises.

…

The landlord refused to accede to this demand.

25. On 13 August 2021 an officer of the landlord hand delivered a letter to the letterbox of the tenant’s mother’s premises. The tenant’s mother’s address is incorrectly stated as no. “7” rather than “5” of her street, but it does not appear to be in issue that it was correctly delivered to no. “5”. That letter stated as follows:

I refer to our conversation of 4 August 2021 regarding your previous tenancy at [address].

During this conversation you advised that you were staying with your Mother at [address] and couldn’t reside in your previous property due to concerns for your health and a Domestic Violence situation.

We also advised you that we were aware that you had applied for Temporary Accommodation on 26^th June but had been declined as you had an active tenancy. We asked why you did not make an application for a Transfer and you advised it was not necessary as you were living with your mother.

You were offered information relating to making an Application for Housing or obtaining a Bond Loan for a private rental. You advised that you didn’t need either option as you were living with your mother.

We advised that we had boarded the property to try and avoid vandalism and destruction and that the property had already been broken into. You advised that there were several items you wished to claim from the property and a time was made to meet you on the 5^th August at 12.30 to enable this.

On the 5^th of August you advised that you would not be meeting us that day as your father was not available to assist with the removal of your goods. You advised that you would contact us the next day to arrange a time. You did not contact us and we have been unable to contact you by telephone since that time.

On the 3^rd of August we issued a 14 day Notice of Disposal for abandoned Goods as per the Uncollected Goods Act 1995. In accordance with that we advise that you must remove your goods by Close of Business on the 17^th August. Failure to do so will result in their disposal.

Can you please contact us urgently on [telephone no,] so we can assist you by providing access for you to obtain your belongings.

26. A copy of this letter was also sent by email to the tenant’s Tenant Advocate, Ms Connor.

27. Also on or about 13 August 2021 the landlord’s contractor removed all items of apparent value (apparently meaning items not obviously rubbish) from the premises and placed them in secure shed storage on site.

28. Additionally, on 13 August 2021 the landlord notified the NCAT Deputy Divisional Registrar that the relist application in respect of SH 21/17382 was withdrawn as possession of the premises had been recovered. It was subsequently dismissed by a delegate of the Registrar on 16 August 2021 on this basis.

26. On 16 or 23 August 2021 (or both) (the evidence is not clear) a person, who was apparently the tenant, attended the premises and took photographs. When asked by a contractor what she was doing the tenant replied that the photographs were for her solicitor. The contractor asked if the tenant would like to remove any of her items from the premises because they were close to being removed from the site. The tenant replied, words to the effect, that she did not want anything as she was going to sue the landlord. Another male person also attended the site during this period on one occasion and yelled abuse at the contractors telling them it was a waste of time them renovating the property because he intended to burn it down. All of this appears in emails that passed between the landlord’s contractors and other officers which are in evidence.

27. The tenant has submitted into evidence a Statutory Declaration dated 24 September 2021 in which she says:

I… have been told by Homes North Moree that I have abandoned [address] which I had no intentions of doing. As when they came around to do a inspection and I wasn’t home at the time so they than proceeded to walk around to the back where they have found my back door open an than continued to enter my home and because my refrigerator was not pluged in turned on, I abandoned my home. Well at least that’s what they assumed to me when I approached the office on the 4^th of August 2021 where I was also asked where was the rest of my furniture was so I told them everything was still at [the premises]

31. The tenant also relies upon a signed statement dated 16 August 2021 made by Irene Daley who is the tenant’s mother. It relevantly states as follows:

…

This letter is in regards of my daughter Katalena Talbot who resides at [address of rented premises]. On the 24^th June 2021 Katalena went to the Moree District Hospital with chest pains. After observation, Katalena went home to her resident (sic) [address of rented premises]

On 24^th June 2021 Katalena rang to inform me that she went to hospital with chest pains. I then asked her was she okay in which she stated that she wasn’t feeling well. I then asked Katalena if she would like me to pick her up to come to my home so that I could check to see if she was okay and her mental health was stable. We also agreed that Katalena spend a couple of hours per day with myself so that I can keep an eye on her. She would then return to her own home with her son in the afternoon.

Since moving into her own resident, Katalena has not lived at [mother’s address]

32. In support of her claim that she was spending time at her mother’s house each day due to a medical condition the tenant has submitted medical documents recording a presentation to hospital on 24 and 25 June 2021. One of these documents is Moree District Hospital Triage Note which indicates that the tenant gave as her address, her mother’s address, not the address of the residential premises. The landlord contends that this is evidence that the tenant was not living at the rented premises from at least this date.

33. The tenant also relies upon a number of Court and medical documents that establish that she was a victim of domestic violence from 2018 and that she is a protected person under an Apprehended Violence Order that is in force until October 2022.

34. In support of her compensation claim the tenant has submitted a Rental Agreement dated 15 October 2020 from Local Appliance Rentals in respect of a lounge suite which she contends was disposed of by the landlord. The agreement required the tenant to pay 52 payments of $126.00 per fortnight. The Rental Agreement gives as the tenant’s address, her mother’s address.

Applicable law

35. Section 50 of the RT Act deals with the tenant’s right to quiet enjoyment of rented premises. Relevantly, it provides that a tenant is entitled to quiet enjoyment of the residential premises without interruption by the landlord: section 50(1). Section 50 is a term of every residential tenancy agreement by operation of section 50(4).

36. Section 51 of the RT Act sets out the obligations of a tenant with respect to the use of rented premises. It relevantly provides:

51 Use of premises by tenant

(1) A tenant must not do any of the following -

…

(d) intentionally or negligently cause or permit any damage to the residential premises

…

(2) A tenant must do the following –

(a) keep the residential premises in a reasonable state of cleanliness, having regard to the condition of the premises at the commencement of the tenancy

(b) notify the landlord of any damage to the residential premises as soon as practicable after becoming aware of the damage

…

(5). This section is a term of every residential tenancy agreement.

37. Section 81 of the RT Act sets out the circumstances in which residential tenancy agreements terminate. It relevantly provides:

81 Circumstances of termination of residential tenancies

(1) Termination only as set out in Act. A residential tenancy agreement terminates only in the circumstances set out in this Act.

(2) Termination by notice and vacant possession. A residential tenancy agreement terminates if a landlord or tenant gives a termination notice in accordance with this Act and the tenant gives vacant possession of the residential premises.

(3) Termination by order of Tribunal. A residential tenancy agreement terminates if the Tribunal makes an order terminating the agreement under this Act

…

(4) Other legal reasons for termination. A residential tenancy agreement terminates if any of the following occurs –

…

(d) the tenant abandons the residential premises.

…

(g) disclaimer occurs (such as when the tenant’s repudiation of the tenancy is accepted by the landlord).

38. Section 106 of the RT Act provides guidance as to the circumstances in which residential premises are abandoned. It relevantly provides:

106 Abandoned premises

(1) The Tribunal may, on application by a landlord, make an order declaring that the tenant abandoned the residential premises on a specified day.

(2) The tenant is taken to have abandoned the residential premises on the specified day

(3) The landlord may take immediate possession of the residential premises that have been abandoned by the tenant if there are no remaining occupants.

(4) In determining whether a tenant has abandoned the residential premises the Tribunal may consider (but is not limited to considering) the following –

(a) the failure by the tenant to pay rent under the residential tenancy agreement.

(b) any evidence that the tenant no longer resides at the premises.

(d) any failure by the tenant to carry out any obligations relating to the residential premises under the residential tenancy agreement.

39. The tenant also relies upon section 120 of the RT Act, which is a civil penalty offence. It provides:

120 Repossession of residential premises - offences

(1) A person must not enter residential premises for the purposes of taking possession of those premises before or after the end of a residential tenancy agreement unless--

(a) the person is acting in accordance with a warrant arising out of an order for possession of the Tribunal or a writ or warrant arising out of a judgment or order of a court, or

(b) the tenant has abandoned the premises or given vacant possession of the premises.

: Maximum penalty--200 penalty units.

40. Section 187 of the RT Act sets out some of the orders that may be made by the Tribunal. These include an order that restrains any action in breach of a residential tenancy agreement and an order that requires an action in performance of a residential tenancy agreement: section 187(1)(a) and (b) respectively. It also includes an order for compensation: section 187(1)(d). Section 187(4) of the RT Act, when read together with Regulation 40 of the Residential Tenancies Regulation 2019 (RT Regulation) imposes a prescribed monetary limit of $15,000.00 on the Tribunal’s order making powers under section 187.

41. The UG Act regulates the obligations of a landlord in relation to goods belonging to a tenant that are left in residential premises at the end of a tenancy. In this respect “goods” are “uncollected” for the purposes of that Act if “a landlord reasonably believes the goods have been abandoned or left behind by the tenant or an occupant of the premises after vacant possession of the premises is obtained or the premises are abandoned (within the meaning of the RT Act)”: section 5(2)(c) of the UG Act.

42. Section 7 of the UG Act provides that a person does not incur any liability in respect of the disposal of uncollected goods, relevantly, in accordance with that Act.

43. Part 3 of the UG Act deals with the disposal of uncollected goods after due notice to the depositor. It distinguishes between “perishable items and rubbish, and “low”, “medium” and “high value” goods and “personal documents”. I note that no issue has been raised in these proceedings concerning any personal document being disposed of by the landlord. Nor has it been contended that any good allegedly disposed of by the landlord had a value greater than $20,000.00 such that it was a high value good. However a question is raised as to whether at least one item allegedly disposed of by the landlord (being a lounge suite) was a low or medium value good. There is also an issue arising from the evidence as to whether the all or most items disposed of by the landlord were “rubbish”.

44. Section 24 of the UG applies to perishable goods and rubbish. It provides that Part 3 does not prevent a receiver (the landlord in this case) from disposing of rubbish or perishable uncollected goods: section 24(1). A receiver is not required to give a depositor (the tenant in this case) notice of the receiver’s intention to dispose of the goods: section 24(1)(A). Goods may be disposed of under section 24 in such manner as the receiver considers appropriate. The word “rubbish” is not defined in the UG Act. However, its ordinary meaning is “waste material” or “refuse”.

45. Section 20 of the UG Act applies to low value uncollected goods which are goods with a value of less than $1,000.00: section 20(1). A receiver may dispose of low value uncollected goods in an appropriate manner if the depositor has been given oral or written notice of the receiver’s intention to dispose of the goods, and has been given at least 14 days, from the date when the notice was given, within which to collect the goods: section 20(2). The receiver may move or store low value uncollected goods in an appropriate manner: section 20(3).

46. Section 21 of the UG Act applies to medium value uncollected goods, which are goods with a value equal to or more than $1,000.00 but less than $20,000.00: section 21(1). A receiver may dispose of medium value uncollected goods by way of public auction or private sale for a fair value if the depositor has been given written notice of the receiver’s intention to dispose of the goods and has been given at least 28 days, from the date when the notice was given, within which to collect the goods: section 21(2). The receiver may move or store medium value goods in an appropriate manner: section 21(3).

47. Section 26 of the UG Act deals with the form of notices for the purpose of Part 3. A Notice must include the following information: (a) the receiver’s name, and (b) a description of the goods, and (c) an address where the goods may be collected, and (d) a statement of the relevant charges due to the receiver in respect of the goods, and (e) a statement to the effect that, on or after a specified date, the goods will be disposed of unless they are first collected and the relevant charges paid, and (f), if applicable, a statement to the effect that the person will retain, out of the proceeds of sale of the goods, an amount not exceeding the relevant charges.

48. Section 31B of the UG Act provides that the Tribunal may, relevantly, on the application by a depositor, make an order requiring the receiver to pay compensation for uncollected goods disposed of by the receiver otherwise than in accordance with that Act.

Submissions

49. It is the tenant’s submission, in summary, that she never relinquished possession of the premises to the landlord and that she therefore has a continuing right to occupation of the premises which the Tribunal has the power to compel the landlord to restore pursuant to an order under section 187(1)(a) or (b). Although not articulated in this way, this presumably amounts to a submission that the landlord has breached its obligation not to interfere with the tenant’s right to quiet enjoyment of the premises and is thus amenable to being ordered to refrain from that breach or perform that obligation. Particular reliance is placed upon the fact that the landlord did not obtain an order from the Tribunal terminating the residential tenancy agreement or declaring that it had been abandoned before it recovered possession.

50. In that context, at least as I understand it, the tenant contends that she is entitled to be compensated for the loss she incurred as a result of the interruption of her quiet enjoyment, which is the value of the personal possessions the landlord disposed which she contends exceeds $15,000.00 (but she limits herself to this amount because of the prescribed monetary limit on the Tribunal’s order making power imposed by section 187(4)(a) of the RT Act and Regulation 40 of the RT Regulation). In the alternative, as I understand it, the tenant contends that the landlord failed to act in accordance with Part 3 of the UG Act in relation to the goods left in the premises when it retook possession and that she is entitled to an order for compensation on that basis.

51. The landlord contends that it recovered possession of the premises after it was abandoned by the tenant and that the residential tenancy agreement terminated on the basis of that abandonment in accordance with section 81((4)(d) of the RT Act. It denies that it has any obligation to restore possession of the premises to the tenant and submits that the Tribunal has no power to reinstate the tenancy in these circumstances. It submits that it has disposed of the goods left remaining in the premises on the date it recovered possession in accordance with Part 3 of the UG Act.

Consideration

52. I am satisfied on the whole of the evidence before me that the residential tenancy agreement was terminated on the basis that the tenant abandoned the premises (section 81(4)(d)) or on the alternative basis that the tenant repudiated the agreement and the landlord accepted that repudiation by recovering possession (section 81(4)(g). I reach these conclusions for the following reasons.

53. On the date the landlord recovered possession (3 August 2021) the tenant had not made any payment towards rent or rent arrears since 9 June 2021, despite the specific performance orders made by the Tribunal on 22 April 2021. In other words, rent had fallen due on 7 occasions since 9 June 2021 and had not been paid. Rent arrears payments had also fallen due on 4 occasions since 9 June 2021 and had not been paid. That constituted a repudiation of the residential tenancy agreement. The payment of rent is a primary obligation of a tenant to a landlord in return for possession of premises.

54. Additionally, it is manifest from the condition of the premises described by the landlord’s officers and depicted in the photographs taken on 3 August 2021 that the tenant had caused or permitted intentional or negligent damage to the premises, including by leaving it unsecured against intruders, and had failed to maintain the premises in a state of reasonable cleanliness contrary to her obligations pursuant to section 51(1)(b) and 2(a) and (b) (as these are incorporated into the residential tenancy agreement) This was also a repudiation of her obligations to the landlord as a tenant. I note that the premises is a valuable public or quasi-public asset which the landlord had a legitimate right and obligation to protect from degradation. Its conduct in recovering possession of it immediately on discovering its condition without applying to the Tribunal for an order declaring the premises abandoned was therefore reasonable in the circumstances.

55. There are also additional indicators that the tenant had abandoned her tenancy by 3 August 2021. The tenant had failed to respond to the landlord’s officers repeated attempts at contact, by several means, over many weeks. She had not collected mail from the premises’ letterbox since at least 3 July 2021.

56. Despite what the tenant says in her statutory declaration and in her oral evidence, and despite what Ms Daley says in her statement, I am satisfied that the tenant was in fact living at her mother’s address on 3 August 2021 and had been for some considerable period of time. That is what she told the landlord’s officers at her meeting with them on 4 August 2021, each of whom made statutory declarations to this effect. I am also satisfied that at this meeting the tenant acknowledged or accepted that she had vacated the premises and that she did not assert any right to continue to occupy it. That conclusion is consistent with the objective facts. On that date she signed a Centrepay deduction authority which permitted the landlord to draw $100.00 payments from her fortnightly Parenting Payment in respect of a “debt” and she also signed an Arrears Repayment Plan Agreement in the same terms. Neither document includes any reference to the payment of current rent, as would be the case if the tenancy was to continue. The tenant also made arrangements with the landlord’s officers (which ultimately did not come to fruition) to remove some items from the premises. That is consistent with possession having been relinquished.

57. There are other objective facts that lead to the conclusion that the tenant did not occupy the premises. The Moree District Hospital Triage note dating to 24 June 2021 records the tenant’s address as her mothers’ address. That information was obviously given to the treating team by the tenant herself. It cannot be ignored that the tenant also gave her mother’s address as her address on the Local Appliance Centre Rental Agreement which she signed within two months of entering into the residential tenancy agreement. This may suggest a practice of giving that address despite having her own.

58. However, the surrounding circumstances persuade me that the tenant gave that address to the treating team on 24 June 2021 because that is where she was living in fact. It is otherwise not possible to understand the tenant’s evidence with respect to domestic violence. This evidence, given orally, and in submissions, was to the effect that the tenant could not live at the premises because of the risk that a former violent partner might find her there. In this respect it is not possible to believe Ms Daley when she says in her statement that the tenant would stay with her for a few hours during the day, then return to the rented premises with her son in the afternoon. If that were the case the tenant would be returning to a location where she would be potentially exposed to domestic violence. Additionally, on 3 August 2021, when the landlord recovered possession, the refrigerator was turned off and had decomposing food inside. The premises’ contents were ransacked and its fabric vandalised. It could not reasonably sustain the domestic life of a mother and child.

59. The tenant contends, in effect, that the landlord could only lawfully recover possession of the premises if the Tribunal made a termination order on the relisting of SH 21/17382 or if it applied to the Tribunal, and obtained, a declaration that the premises were abandoned pursuant to section 106(1) of the RT Act. This submission is misconceived. It ignores section 106(3) of the RT Act which enables a landlord to immediately retake possession of abandoned premises provided there are no remaining occupants. It also ignores the operation of sections 81(4)(d) and (g) which provide that a residential tenancy agreement terminates upon the abandonment of premises or when a tenant repudiates the agreement and the landlord accepts this. It is unnecessary for a landlord to obtain a termination order or abandonment declaration in these circumstances, although a landlord may elect to do so.

52. It is clear on the evidence that on and from 5 August 2021 the tenant asserted a right to possession of the premises. In this respect it is clear that she changed her mind about the relinquishment of the premises. But this was after the residential tenancy agreement had terminated on 3 August 2021. A landlord has no obligation to reinstate a tenancy that has terminated according to law. Nor does the Tribunal have any power in the circumstances of this case to order the landlord to reinstate the tenancy. I also note in this respect that apart from asserting a right to possession the tenant has not performed the obligation of a tenant to pay rent or rent arrears at any time since 5 August 2021. It appears to be her position that the payment of rent is not material to whether or not a tenancy exists.

53. For the foregoing reasons I therefore also conclude that in recovering possession of the premises the landlord did not interfere with the tenant’s right to quiet enjoyment of the premises. The residential tenancy agreement had terminated and no such obligation was then owed to the tenant. As there was no breach of this obligation, there is no foundation for any claim for compensation based on such a breach.

54. It is therefore the position that any claim that the tenant has in relation to the goods that were left in the premises on 3 August 2021 is only maintainable under Part 3 of the UG Act.

55. The first difficulty the tenant faces in this regard is to establish precisely what the landlord’s obligations were with respect to these goods. Specifically, that they were not rubbish that could be disposed of without reference to her, and that they (or some of them) were medium value goods which required a 28 day notice period, rather than the 14 day notice period provided by the landlord.

56. In this respect I ought to note that I do not understand it to be in dispute that the tenant received the landlord’s Notice of Disposal. In any event, I am satisfied that she did. It was available for her collection from the letterbox of the premises from 3 August 2021, she was informed of it at her meeting with the landlord’s officers on 4 August 2021, and she was advised in writing again by hand delivery of a letter to her mother’s address on 13 August 2021 with a copy of that letter also being provided to her Tenant Advocate. There can be no question that the tenant was on Notice as to the intended disposal of her goods in these circumstances. I also note that it has not been argued before me that the landlord’s Notice of Disposal fails to comply with the requirements for such a Notice as these are set out in section 26 of the UG Act. In any event I am satisfied that it does.

57. The only evidence of the value of the goods that has been submitted is the Local Appliance Centre Rental Agreement which has a total value of $6552.00 over the whole period of the agreement. There are two difficulties with this evidence. First, as noted above, the address given on that agreement is the tenant’s mother’s address. This raises a question as to whether the lounge suite that was the subject of the agreement was ever located at the rented premises. Second, the tenant has not submitted any evidence of the condition of the lounge on or about 3 August 2021. There are some photographs in the landlord’s evidence of what appear to be components of a lounge suite, but they depict these components in seriously damaged condition. If this is the lounge suite that was the subject of the Rental Agreement it would not be possible to conclude that it had any residual value on 3 August 2021, despite what may have remained owing by the tenant to the Local Appliance Centre.

58. I have noted above that the landlord’s photographs appear to depict some intact chairs and other items remaining in the premises. These items appear to be still capable of use, and in that sense are not “rubbish”, but they would not have any significant commercial value. Otherwise, it appears to me from the condition of the other items depicted in the photographs that this is rubbish within the meaning of section 24 of the UG Act which the landlord was entitled to dispose of without reference to the tenant and without incurring any liability to her.

59. Consequently, if any goods remaining in the premises on 3 August 2021 had a commercial value, they were low value goods within the meaning of section 20 of the UG Act. The landlord was therefore obligated to give the tenant 14 days’ notice of its intended disposal of those items, after which those items could be disposed of by any appropriate means without incurring any liability to the tenant.

60. I am satisfied on the evidence set out above that the tenant was given such notice and had the opportunity to retrieve items from the premises for a period in excess of 14 days but initially failed and ultimately refused to do so. Although not explicit in the evidence, I infer that the goods were ultimately disposed of as rubbish by the landlord after the tenant refused to collect them. That was an “appropriate means” of disposal in the circumstances. In this respect I find that the cost of sale of these items, should this have been attempted, would have exceeded the likely proceeds of any such sale.

61. There was therefore no failure by the landlord to comply with Part 3 of the UG Act in relation to the goods that remained in the premises after it recovered possession on 3 August 2021. No claim for compensation for the disposal of those goods is maintainable by the tenant.

Conclusion

70. For the foregoing reasons the application must be dismissed.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 10 February 2022