Moorehouse v Angus and Robertson (No. 1) Proprietary Limited Anor [1981] 1NSWLR 700

Craig Williamson Proprietary Limited v Barrowcliff [1915] VicLawRp 66; [1915] VLR 450

Banks v Ferrari [2000] NSWSC 874

Keene v Carter (1994) 12 WAR 20

Simpson v Gowers (1981) 121 DLR (3d) 709

Applicant: Community Housing Limited - Self-represented

1. On 25 September 2025 I made an order permitting the owner to sell the tenant's goods left at the property after the termination of a residential tenancy agreement for the best price reasonably obtainable. I indicated I would give my reasons for making that order shortly after that. These are those reasons.
2. On 6 September 2023 Tara Donald entered into a residential tenancy agreement with Homes Tasmania for the property at 14 Sassafras Crescent in Rocherlea. On 11 March 2025 Ms Donald left the property. She did not remove her personal belongings which have an estimated value of $980.00. They are still there.
3. Community Housing Ltd, who I infer is now managing the property for Homes Tasmania, has applied for an order pursuant to section 48(1)(c) of the Residential Tenancy Act 1997 (the Act) permitting the sale of Ms Donald's belongings.

(1) If a residential tenancy agreement is terminated and goods on the premises to which the agreement relates appear to be abandoned by the tenant, the owner may -

(a) dispose of the goods if they appear to the owner to have no value; or

(b) sell the goods if they appear to have a value less than the prescribed amount; or

(c) apply to a magistrate for an order permitting the sale of the goods for the best price reasonably obtainable if they appear to have a value equal to or more than the prescribed amount.

(2) The owner is to verify by a statutory declaration the means of disposal of any goods under subsection (1)(a) .

(3) The proceeds of the sale of goods are to be dealt with as follows:

(a) firstly, in the payment of any debt owed by the tenant to the owner;

(b) secondly, in the payment of the reasonable costs of the sale;

(c) thirdly, any balance to be kept in an interest bearing account for the tenant for a period of 6 months.

(4) If the tenant does not claim any proceeds of the sale of goods kept under subsection (3)(c) within 6 months, the proceeds become the property of the Commissioner."

1. Two of the preconditions to making the order are met.
2. First, the Residential Tenancy Agreement was terminated.
3. On 14 May 2025 the tenant signed a document headed "Notice of Vacating Property" which acknowledged certain obligations of the tenant. That position seems to have been accepted by the owner. I therefore infer that the parties have agreed to terminate the residential tenancy agreement as provided for in s 37(1)(a) of the Act.
4. Alternatively, it might be that the tenant has vacated the premises early or abandoned them.
5. What is meant by early vacation is not defined by the Act. It is not clear whether it applies only to an agreement for a fixed period or can apply to vacation of the premises where the agreement is for no fixed period. But the premises are abandoned if the circumstances specified in s47 of the Act are met. That provision is in the following terms.

(a) the tenant has ceased to occupy those premises; and

(b) a notice of termination has not been served in respect of those premises; and

(c) a notice to vacate has not been served in respect of those premises."

1. The tenant vacated the premises in March 2025. She provided a Notice of Vacating Property in May 2025. In those circumstances it is unlikely the procedures for a notice of termination or notice to vacate were used. The tenant has ceased to occupy the premises. I am therefore satisfied the premises have been abandoned.
2. Second, there are various goods on the premises. The issue is whether those goods appear to be abandoned by the tenant within the meaning of s 48 of the Act. That involves a construction of the phrase "appear to be abandoned". That construction is to have regard to the text context and purpose of the legislation.
3. As for the text, the Macquarie Dictionary defines "abandon" to mean:

"to leave completely and finally; forsake utterly; desert; to give up all concern in; to give up the control of; and to cast away or leave personal property with no intention of reclaiming it, thereby making it available for appropriation by any person".

1. That meaning is consistent with the definition of abandonment in the law. In Banks v Ferrari [2000] NSWSC 874 Dowd J said, at [98]:

"Abandonment is said to occur when there is a giving up or an absolute relinquishment of private goods by a former owner. Such a state of affairs may arise when the owner of the goods is intent on specific desertion and relinquishment by either casting away the property or by simply leaving it behind Keene v Carter (1994) 12 WAR 20, at 26 per Ipp J."

1. In Keene v Carter, above, Ipp J referred to the judgment of the Ontario Court of Appeal in Simpson v Gowers (1981) 121 DLR (3d) 709 where the Court adopted a textbook definition of abandonment in the following terms:

"Abandonment occurs when there is 'a giving up, a total desertion, and absolute relinquishment' of private goods by the former owner. It may arise when the owner with the specific intent of desertion and relinquishment casts away or leaves behind his property...".

1. In order to establish abandonment there must be some evidence of an intention not to make any further claim in respect of the goods. In Moorehouse v Angus and Robertson (No. 1) Proprietary Limited and Anor [1981] 1NSWLR 700 Hutley JA said, at 706:

"Let it be assumed that rights of property and chattels may be lost or extinguished by abandonment. To attract the principle, it would be necessary for the party asserting the abandonment to present evidence which established an express intention to abandon or from which such an intention might be inferred."

1. Establishing that intention is often a matter of inference. It can be difficult for such an intention to be established because there are often many alternative explanations for unclaimed goods.
2. Applying that meaning strictly would have the effect of making it difficult for an owner to establish that goods have been abandoned. There might be many cases of goods left at the premises after the end of a lease where the tenant is not intending to give up the right to possess or own the goods.
3. As for context, s 48 immediately follows the section which defines the circumstances in which the premises will be taken to have been abandoned. That involves nothing more than the tenant ceasing to occupy the property without formal steps to bring the tenancy to an end having been taken.
4. The construction of s 48 is also informed by the principle that, so far as possible, words used in a statute should be given the same meaning wherever they appear: Craig Williamson Proprietary Limited v Barrowcliff [1915] VicLawRp 66; [1915] VLR 450 at 452 per Hodges J. The authors of Pearce and Geddes in Statutory Interpretation in Australia expressed the principle in the following way:

"Once a term is given a particular meaning in an Act prima facie all references that are derived from or associated with that term should be treated as based on the defined meaning of the term."[1]

1. That principle applies particularly to words used in the same section of the Act. In this case the concept of abandonment is referred to in adjoining sections contained in the same Part and Division of the Act. That suggests the meaning of the abandonment in s 48 should align with the meaning of abandoned in s 47 of the Act.
2. Although the nature of the property dealt with in s 47 is different to that in s 48, as a matter of practical reality, the occupation of the premises and the possession of goods on the premises are very closely connected. If the meaning of abandonment in s 48 is aligned with the meaning in s 47, where the goods are left at premises after the right to occupy the premises has been abandoned, it would follow that the right to possess the goods has also been abandoned.
3. I turn to purpose.
4. The purpose of s 48 is to fairly balance the rights of owners and the rights of tenants once the residential tenancy agreement has ended.
5. From the owner's perspective, goods left on the property create problems. The owner becomes an involuntary bailee of the goods with uncertain rights and obligations.
6. The position of an involuntary bailee is considered in Palmer, N E, Bailment 2nd evidence-in-chief, The Law Book Company Ltd 1991 at pp 700-704. In that most useful and authoritative work the author states there is very little authority as to what courses of action are open to someone in the position of the owner in this case. The authorities referred to variously suggest that there is no obligation to warehouse the goods but returning them to the street might be a breach of the admittedly low duty of care. The author suggests suing the true owner for trespass although, as he pragmatically indicates, it is hard to believe that such actions would be universally successful or if successful, worthwhile. Another suggestion is to take the chattel to the police but there is no obligation on the police to accept custody. As the author says: "The difficulties of the involuntary bailee's position remain a blot on the law...": at p 702.
7. Having regard to the interests of the owner, creating the power to dispose of property left after the tenancy has come to an end when the tenant stops residing there, is appropriate. It avoids the legal uncertainty that would otherwise attend dealing with those goods. It is clear that is one of the purposes of s 48 of the Act.
8. However, the legitimate interests of the tenant and others with an interest in property left on the land must also be protected.
9. There might be many situations where a tenant would be benefited by not having to incur the cost and inconvenience of moving and storing items even where they have some value. In such situations the tenant is not disadvantaged by allowing the owner to deal with the goods.
10. Further, the tenant cannot legitimately complain about valueless goods being disposed of or low value goods being sold. Even in the case of items of sentimental value, if they are of sufficient value to the tenant, the tenant should remove them. It is unfair to burden the owner with responsibility for caring for those goods. Of course, that still leaves the owner with the burden of dealing with the goods but they should be able to do so without liability to the tenant.
11. Where the goods have more substantial value, court approval is required for any sale. That ensures some external scrutiny first to ensure that the goods do appear to be abandoned and second to ensure that the sale is not likely to give rise to injustice for the tenant. If the goods appear to be abandoned, the tenant cannot legitimately expect the owner to care for them.
12. The tenant also has the protection of being entitled to the balance of the proceeds of sale and interest thereon after payment of any debt due to the owner if the tenant claims those proceeds within six months of the sale.
13. Those matters suggest the concept of abandonment should be construed broadly enough to ensure an owner is not unfairly burdened with responsibility for goods left behind at the end of the tenancy but with sufficient rigour to ensure such goods are not unfairly disposed of contrary to the interests of the tenant.
14. Further, in accordance with s 48 it is not necessary to establish actual abandonment but only the appearance of abandonment. The use of the word "appears" adds an important limitation on what needs to be shown in order for the owner to be entitled to deal with the goods. Actual abandonment does not need to be shown. That is, it does not need to be shown that there is an intention to make no further claim. All that needs to be shown is that it appears there is no intention to make any further claim. The effect of the word "appearance" is to loosen the strict requirements of what might otherwise need to be established for an owner of premises to deal with goods left there as abandoned goods.
15. In many cases, leaving the goods at the property after the tenant ceases to reside at the property bringing the residential tenancy agreement to an end will create that appearance. Nonetheless, the appearance of abandonment needs to be established in all the circumstances of the case.
16. In this case there is some evidence that the tenant does not want to give up her ownership of the property. In a meeting with Ms Savage of Community Housing on 10 June 2025 the tenant said that she does want the items but has nowhere to put them because she has nowhere to live. That is arguably inconsistent with an intention to make no further claim on them.
17. However, the intention of an owner of goods can change over time. In Keen v Carter, above, Ipp J said:

"...an owner of a chattel who loses it, may initially not have the intention to abandon it (in which case it is not abandoned) but may thereafter change his or her mind, and form a specific intent to relinquish ownership in the chattel. That in my view would give rise to an abandonment. This may occur, for example, when the owner regards the lost things as being of little value, or of no personal importance to him or her. Inferences may be drawn of an intention to abandon from such matters as the value of the chattel, the circumstances under which and where it is lost, the length of time for which it has been lost, and the attempts that the owner has made to ascertain its whereabouts... Generally, however, it would be difficult to establish, inferentially, the abandonment of a lost chattel by the owner."

1. Similar considerations apply to goods left behind at the end of a tenancy.
2. Taking those principles and considerations into account, I am satisfied the goods do appear to be abandoned within the meaning of s 48 of the Act. The tenant has stopped occupying the premises. The goods are still there many months later. Although the tenant has said she wants to keep the goods she has also said she has no stable accommodation where she could take them. She has nowhere to store them. Despite referring to the possibility of storing them with her son, she has not achieved that. Whatever her desire to be able to claim possession of the goods, as a matter of practical reality she cannot retain possession of the goods in her current circumstances. There is no suggestion that will change within a reasonable period of time. It therefore looks like she will not be making any claim to the goods. They therefore appear to be abandoned.
3. That means I have the discretion to make an order permitting the sale of the goods. Balancing the interests of the owner and the tenant in this case, in my view it is fair to order the sale of the goods. The tenant will be able to claim the proceeds of sale if she wishes to do so.
4. For those reasons I ordered that the owner is permitted to sell the tenants' goods left at the property more particularly described in the Schedule of Abandoned Goods and Estimated Value contained in the affidavit of Sasha Savage sworn 7 July 2025 for the best price reasonably obtainable.

[1] Pearce, D.C. and Geddes, R.S. Statutory Interpretation in Australia, 7th ed. [6.67].