White v Weston Raine & Horne No. Dcadd-03-55

WHITE v WESTON RAINE & HORNE
[2003] SADC 77
Judge Rice
Civil
Introduction

This is an appeal against orders of the Residential Tenancies Tribunal (“the Tribunal”) made on 7th February, 2003. The appeal is pursuant to s.41 of the Residential Tenancies Act 1995 (“the Act”). Because of the course of the appeal, I reproduce s.41(2) of the Act concerning the Court’s powers:-
“41.   (1)    ......
(2)    On an appeal, the District Court may (according to the nature of the case) –
(a)     re-hear evidence taken before the Tribunal, or take further evidence;
(b)    confirm, vary or quash the Tribunal’s decision;
(c)    make any order that should have been made in the first instance;
(d)    make incidental and ancillary orders.”
I have also had regard to s.42E of the District Court Act to the extent it is not inconsistent with the Act.
Although the appellant, Mr White, gave some evidence before the Tribunal, he said he did not cover all topics in the manner he could have because he misunderstood some aspects of the hearing. In the end I decided to re-hear the evidence from him, Ms Pinkus for the landlord, and her witnesses.
Factual background
Up to and including most of October, 2002, Mr White was renting a unit at 3/3 Gardiner Terrace, Smithfield. The property was being rented through agents, Weston Raine & Horne. Before the events giving rise to these proceedings before the Tribunal, the Tribunal made orders on 17th September, 2002 establishing a scheme for Mr White to pay rent arrears in conjunction with his on-going rent. As was confirmed at the hearing before me, payments were being received by the agents substantially in accord with the scheme and there was no dispute with him in that regard.
In early October, 2002, Mr White left the unit at Smithfield to visit and assist his girlfriend who lived at McLaren Vale. He did not vacate or abandon the unit. As at this time he had been renting the unit for about two years. When he left the unit in early October, he was proposing to be away for about three weeks. He did not have a large number of personal possessions and took a substantial amount of his clothing with him. He did, however, leave behind a significant number of belongings that were of value. He left at the unit a near-new Fisher & Paykel refrigerator, a microwave, kettle, toaster, crockery, kitchen table and chairs, entertainment unit and colour television, double bed and other personal items (TP21-23).
While he was staying at McLaren Vale, Mr White entrusted his brother with the picking up of his personal mail from the letter box. Mr White rang his brother on occasions to ascertain what mail had been received. His brother did not have a key to the unit.
While Mr White was away, the agent, Ms Pinkus of Weston Raine & Horne, said she received reports of a person or people coming and going from the unit and taking items from the unit. She received those reports from Mrs Haggerty who was interested in renting the property. Mrs Haggerty, who at that time was staying with her daughter in another unit in the same group, confirmed those observations in the evidence she gave.
On about 3rd October, Ms Pinkus attended at the premises and left a letter on the door for Mr White. The letter read as follows:-
“Re: 3/3 Gardiner Tce Smithfield
Would you please contact our office urgently on 8344 9529 as we are unable to contact you on the mobile phone number we have for you.
It appears that you are moving from the above unit and we have someone who would like to rent the unit as her daughter is renting unit 1. We have been told that the unit has been unattended for a while and that you have been moving your belongings out.
Any outstanding rent would only need to be paid to the date the new tenancy starts but we would need the keys to be returned and the tenancy finalised.
If you are still planning to remain at the unit please contact our office within the next 7 days. If we do not hear from you we will store any belongings left at the unit for 60 days and re rent the unit.
Please contact us urgently in relation to this matter.”
There was not contact made by Mr White.
On 11th October she inspected the premises. Ms Pinkus, for a combination of reasons, formed the view that the property had been abandoned. She said the refrigerator and lounge were there but, overall, there seemed to be little by way of personal belongings. She had a note, made at the time, of some of the items then remaining. On her evidence there was considerably less there than she had seen in a July inspection. Her inspection, in conjunction with her 15 years experience in property management, led her to believe the property had been abandoned (TP48).
Mrs Haggerty took up a lease on Mr White’s unit on 17th October as unfurnished premises. Ms Pinkus said her means of storing Mr White’s possessions (see the last paragraph of her letter as above) was that they remained in the unit but were kept to one side. Mr White’s possessions were not to be used by Mrs Haggerty. Some of his items were moved within the unit and the double bed was moved to a garage (that was open at the back but not the front). None of his belongings were otherwise removed.
Ms Pinkus then applied to the Tribunal for Mr White’s bond money because, as at about mid-October, there were arrears of rent being paid at the same time as on‑going rent. Ms Pinkus received some of the $400.00 bond put up by the Housing Trust and the excess of $167.00 was sent back to the Trust. She believes she attended the Tribunal for that purpose on 16th October.
On Sunday, 3rd November, 2002, Mrs Haggerty was watching television at home when some people came to the door and they appeared to have a key to the unit. She was told that they had come to pick up Mr White’s refrigerator and lounge suite. Because these people seemed to know Mr White she allowed them to take the items. Mrs Haggerty did not contact Ms Pinkus on that Sunday but was proposing to do so the following day. However, as events transpired, Mr White returned to his unit before Mrs Haggerty could speak with Ms Pinkus (TP60-65).
It appears to me that Mrs Haggerty genuinely believed that the people who took the refrigerator and lounge suite were acting on behalf of Mr White. However, as well-intentioned as she was, that belief was mistaken. I find that Mr White had not sent anyone to collect those items. Having seen Mr White give evidence, I found him to be straightforward, honest and lacking in guile. I reject the suggestion that he abandoned his unit or that he sent someone to collect the items concerned. I add that there is no evidence to suggest that Ms Pinkus gave any instructions to Mrs Haggerty as to what Mrs Haggerty should do if anyone arrived to collect any items supposedly on behalf of Mr White.
On the morning of 4th November, 2002, Mr White left McLaren Vale to return home. On returning, the first thing he did was to check his letterbox for mail. As he drove up to his unit he saw a woman whom he later discovered was Mrs Haggerty. His initial thought was that he had a squatter in his home. He quite obviously asked her: “What are you doing in my flat?” She responded by telling him that she had a lease for the unit and, upon his request, she promptly showed him her lease (TP27-29, 37).
At this point he noticed that his lounge was missing and he asked Mrs Haggerty what had happened to it. She informed him that some people came to retrieve his lounge suite and refrigerator on his behalf the previous day. He then said: “I haven’t given anyone authority to take it” (TP30).
Soon after, he attempted to contact Ms Pinkus on a public telephone but she was not in the office and he was told that she would contact him later. He then proceeded back to the unit in order to sort out his belongings that still remained in the unit (TP30-31).
Mr White took with him his television, the remainder of his clothing, some items relating to his saddlery activities (TP32) and other related household items (TP35-36). He was unable to gather too much as his back injury prevented him from lifting heavy items (TP32). At some point he also noticed that his Fisher & Paykel refrigerator was missing (TP35). Mr White contends that he did not send anyone to pick up the lounge suite and refrigerator on his behalf (TP36).
According to Mr White, Mrs Haggerty asked him whether he would be willing to sell her some of the furniture left in the unit (TP32). On Mrs Haggerty’s version, it was the other way round (TP62). An agreement was made between the two as to what he would be willing to sell and for how much (TP32-33). He was paid half at the time and returned a week or two later for the remainder (TP33 White) (TP62-63 Haggerty). His decision to sell some of his belongings was motivated by the problems he would encounter with removing them (TP34-36).
Mrs Haggerty offered the unit back to Mr White and, according to Mr White, he did not reject the offer outright, but rather felt that it was an issue that would need to be discussed with the land agent (TP43). According to Mrs Haggerty, Mr White told her that it was a good opportunity to make a fresh start and that he had spoken to a lawyer about the situation (TP62).
Sometime later, Ms Pinkus did contact Mr White and a discussion took place as to why the unit had been given to someone else (TP31-33). Mr White was told that a letter had been left on the door by Ms Pinkus (TP41). During this conversation, Ms Pinkus believes she asked him why he had not contacted the office (TP50). She said: “He made some off-the-cuff – he wasn’t very nice, something about being on holidays and didn’t have to tell me.…he then made the comment to me about getting some money out of this..” (TP50). It was at this point that she referred him to the Tribunal.
Mr White says he did not receive any form of communication from Ms Pinkus, be it a telephone call or a written letter, by way of notice that he was going to lose the unit (TP25).
According to Mr White, when the hearing at the Residential Tenancies Tribunal took place, it was his understanding from the information he had received from Ms Pinkus that the hearing was in regard to rent arrears, and the first he heard of the issue of abandonment was at that hearing (TP38-39). He came prepared with receipts only. The evidence of Ms Pinkus refutes this suggestion (TP50). Ms Pinkus did concede, however, that Mr White was up-to-date with his rent as per the previous order made by the Tribunal (TP55).
The decision appealed against
Before the Tribunal, Mr White sought compensation of $4,298.00 comprised as follows:-
1.$1,500.00 for stress, illegal eviction and loss of personal belongings.
2.$1,199.00 for the loss of his refrigerator.
3.$1,599.00 for the loss of his lounge suite.
The Tribunal found that, with respect to the refrigerator and lounge suite, Mr White was not entitled to any compensation because neither the landlord nor its agents had been at fault. (Mr White only seeks two-thirds of their value having regard to depreciation.) That finding is challenged on this appeal.
As to the portion of the claim for stress, the Tribunal found that there was no power to make an award of damages for personal injury. That finding is not challenged.
As to illegal eviction, the Tribunal was not persuaded that, given the circumstances, an illegal eviction occurred. It was submitted before this Court that there was sufficient evidence to make that finding.
Additional legal considerations and discussion
Refrigerator and lounge suite
The Act makes specific provision for abandoned premises and abandoned goods. I reiterate that, in my view, the unit had not been abandoned. I find that Ms Pinkus believed the unit had been abandoned but that she did not then act reasonably having regard to the scheme of the legislation.
Concerning abandoned premises, the Act makes this provision in s.94(1):-
“94. (1) The Tribunal may, on application by a landlord–
(a)declare that a tenant abandoned premises on a day stated in the declaration; and
(b)make an order for immediate possession of the premises.”
No such declaration or order was obtained in this case. In my view, such a declaration and order should have been obtained having regard to the fact that Mr White’s scheme for payments was being adhered to and the fact that a substantial number of items were still at the unit, some of them of significant value. Those matters should have engendered sufficient doubt about the status of the agreement to seek a declaration and order.
Ms Pinkus, believing the unit had been abandoned, was obliged (on behalf of the landlord) to store Mr White’s belongings in a safe place (s.97). I do not think that that section necessarily requires the landlord to remove and store goods at a separate storage facility, although that may be the best course in some circumstances. These goods were stored at the unit because it seemed the best course to adopt. However, they were not stored safely because there was a risk of access and taking by unauthorised persons. This is what happened on this occasion.
As well-intentioned as Mrs Haggerty may have been, without recourse to Ms Pinkus and without Ms Pinkus giving a contrary instruction, the goods were taken. In my view, Mr White should be compensated for the loss of the refrigerator and lounge suite, but only as to two-thirds of the value of replacement new items.
Before the Tribunal, Mr White produced documentation from Harvey Norman Furniture & Electrical showing the new cost of the refrigerator to be $1,199.00 and the lounge suite as $1,599.00. Those amounts seem reasonable. I award Mr White compensation for those two items - a total of $1,865.00. Although the landlord was represented by its agent, the award is against the landlord.
Illegal eviction/quiet enjoyment
Mr White also claims compensation for being illegally evicted and the failure of the landlord (via the agent) to allow him quiet enjoyment of the unit (s.65). The Tribunal (and this Court) is empowered to order compensation to a party to a tenancy dispute (s.110). There clearly is a “tenancy dispute” here within the meaning of those words in s.3 of the Act. I have taken the view that his residential tenancy agreement was unreasonably terminated. Mr White then obtained other accommodation, living with friends and the like. He is not in a position to obtain further rented accommodation because he is not able to raise the bond money of $400.00. He wants his own place. As mentioned, Ms Pinkus sent $167.00 to the Housing Trust after deduction for the unpaid arrears of rent.
On the other hand, Mr White was re-offered the unit by Mrs Haggerty. He did not take up the offer because he said it was not for her to make the offer. He said Ms Pinkus did not make any such offer (TP42-3). Whilst that may be the case, Mr White made no real effort to go back into the unit.
In my view, Mr White should be compensated but not for the four weeks rent he suggests. It would meet the justice of the case to award him $233.00 being an amount that, in conjunction with the $167.00 paid to the Housing Trust, would be enough for a bond on another unit.
Orders
I order that the landlord pay Mr White the total amount of $2,098.00 being $1,865.00 for the refrigerator and lounge suite and $233.00 towards a new bond.

[2003] SADC 77

16 May 2003