Plaintiff v Defendant

Plaintiff v Defendant - [2015] VSC 339 - VSC 2015 case summary — Zoe

[5]

Hi Mrs. Waddington

I'm writing in regards to Nigel's Rent and the next Payment for the Period of 21st Dec to the 21st Jan.

My Calculation for the month is:

$130pw x 52 weeks = $6760 divide by 12 months (to work out the monthly payments) = $563.33

We had 4 people pack up his room and it looks immaculate! We basically got plastic containers and packaged up as much books as we could and also put some of his books and clothes in suitcases.

Mind you, he did have a lot of paper, in the form of traffic fines, train tickets, documents and more books!

For some other items, we have placed them into garbage bags to keep the room tidy and also to prevent dust settling on to them. I regret to inform you that we had to throw away a 'bong' used to smoke marijuana. It was in use and unfortunately, being a shared house, should the council find this on the premise, it would not look very favourably (or look safe) as a respectable premise. He did have some money lying around and we also placed them into the plastic bags for safe keeping. There is now currently a lock on his door, just in case anyone happens to be wandering by. His room is a well lit room, so its not hard for someone to see what he has.

The room was very dusty and didn't look like it had been swept or wiped down for a very long time. In fact, I would say that on a few occasions, I was overcome by the dust and had to stop cleaning!

Anyway, I hope he is doing well. Is there any word from Nigel? Last I heard, he was concerned about the money in his room and would like to have it sent to his bank account. What I have found were coins, but if he had more money hidden away, we didn't come across and would have been packed into one of the bags. I think we had 7 plastic tubs for his books, 7-8 Garbage bags of books, papers and other documents, various hardware including computer and TV, and more bags and boxes of his DVD & Video collection.

Would you consider having his properties moved to storage in the time being? It might be cheaper to do so. We would still have his room available when he returns. You definately (sic) would need a van to move all his belongings. I've arranged for his room to be cleaned on a monthly basis - wipe down the table/desk and vacuumed.

Have a great New Year.

Kindest Regards

David Kha

[49]

The Plaintiff claims that he is the owner of goods, chattels and possessions and that the Defendants either separately or conjointly as, um, as David Kha ABN and that's the number there did on or about the 14th of January 2011 or certainly between the 1st and the 31st of January 2011 at the address of 51-53 John Street, Oakleigh convert the Plaintiff's goods to their own use and purpose. The Plaintiff further claims that at the time the Defendants or others acting on their behalf divested the Plaintiff of his goods, chattels and worldly possessions by dealing with them as well as disposing of them.

The Plaintiff further claims the Defendants breached their contractual and statutory obligations to the Plaintiff gaining an advantage by those actions as well as permanently depriving the Plaintiff and finally the Plaintiff claims that as a result of the above actions the Plaintiff has necessarily incurred a loss in the sum of $15,240 which he herein claims plus damages, general damages and sufferance plus costs and interest. ...

The Court heard evidence on 15 March 2013 and while it appears the evidence was concluded on that date on the return date of 6 June 2013 I granted Mr Waddington leave to reopen his case given he was an unrepresented litigant and I'm satisfied, um, and that's just the chronology. I'm satisfied on the evidence of the First Defendant, Mr Kha, that he was a tenant at the premises at 51-53 John Street, Oakleigh.

Mr Kha in the Court's view was a credible witness and I consider him also to be a witness of truth. His evidence was that in relation to the Plaintiff's goods he wrote to the mother of the Plaintiff, not being able to contact the Plaintiff and said that there was going to be an inspection by the agent and that the Plaintiff's room needed to be cleaned up. Mr Waddington, the Plaintiff's rent was due and there was a smell coming from the room. Mr Kha offered to clean the room up and this communication was evidenced by the email of the 19th of January 2013, 2011 I beg your pardon.

The Defendant, First Defendant, Mr Kha gave evidence that he cleaned up Mr Waddington's room, packed his goods and placed them in green bags, a bong was thrown out with other rubbish and goods belonging to the Plaintiff were placed in seven tubs and seven bags. The goods included a TV, a computer and a DVD. Nathan Massie did not assist in the clean up and a lock was put on the door of Mr Waddington's room.

Mr Kha said that his mother, his father and his wife assisted him to clean the room. Mr Kha's evidence was that the reason the room was cleaned was that the agent's inspection, the smell, the concern about the drug usage evidenced by the bong and the concerns about the attitude of council. Mr Kha's evidence is that he performed this task and did nothing further with the items and that he does not know what became of all of the items after that time. Last time Mr Kha saw the items was, um, in the room secured away in the seven bags and seven tubs.

Mr Kha's evidence, which I accept is that he did not move them after he and his family packed them up. His evidence also is that his tenancy ended when he cancelled it with Ray White in about February 2012, 2011. Mr Kha gave evidence that he had no idea how the Plaintiff's goods ended up outside and the Plaintiff's evidence was that his goods were ultimately found outside, water damaged and incomplete in the number of items that he had.

It is the Court's view that Mr Kha did not have responsibility for the goods, chattels and/or worldly possessions of the Plaintiff, nor am I satisfied that he disposed of them in the way alleged by the Plaintiff. I find that Mr Kha cleaned the Plaintiff's room, packed his items and locked the door having fixed a new lock to the door. That's the last he saw of the Plaintiff's items. Having heard the evidence of the Plaintiff I'm not satisfied he, I am satisfied that he abandoned his belongings at the premises, was not present when the room was cleaned and he was, he's not be able to say what happened to his items.

His case is speculation and conjecture. There's no evidence that Mr Kha converted any items that belonged to the Plaintiff. There's no evidence that Mr Kha divested himself of or disposed of the items belonging to the Plaintiff or that, and there's no evidence that he made any, um, anything out of the items. There is simply no evidence before me which proves the loss claimed and there's no evidence in relation to the way the loss is made up.

I consider I have no other option but to dismiss the complaint, um, it's regrettable that the Plaintiff's, um, possessions have ended up in the way that they have but it's the Court's finding it was not due to the cause of the Defendant, Mr Kha. So I propose to dismiss the claim.

[110]

66 In the current case, the Reasons fail to meet the requirements set out above. Once again, the Reasons demonstrate a lack of clarity regarding the real issues in dispute in the proceeding. In particular, the Reasons proceed on the basis that Mr Waddington's case was that Mr Kha or his agents converted Mr Waddington's goods for their own advantage. The learned Magistrate believed Mr Kha when he gave evidence that he had cleaned up Mr Waddington's room, secured the room, and did not know what had become of the goods thereafter. However, with respect, that finding does not go to the real issue at the heart of the proceeding. It was not Mr Waddington's case that Mr Kha stole the goods, or even that he was responsible for leaving the goods outside. Rather, Mr Waddington's case was that Mr Kha was a rooming house owner within the meaning of the RTA, upon whom the RTA imposes positive obligations with respect to the security of resident's goods, even after the departure of the resident. This much was clear from the affidavit sworn by Mr Waddington on 29 May 2013 (that is, some days before the trial resumed on 6 June 2013) in support of his application to reopen his case, but the Reasons make no mention of this. It may well be that a court or tribunal could find that Mr Kha had fulfilled those obligations, or was entitled to dispose of the goods, but that is not apparent from the Reasons. Furthermore, the Reasons completely fail to address the evidence of Mr Waddington and Mr Gay regarding Mr Kha's role at the premises, and whether or not that evidence had established that Mr Kha was a rooming house owner within the meaning of the RTA.[16] No mention is made of the concession made by Mr Cook on the final afternoon of the trial that the documents produced upon subpoena by the Monash City Council disclosed that the local council had made a finding that the premises were an illegal rooming house,[17] and that Mr Gay's evidence in that regard was correct. Finally, the Reasons refer to there being 'simply no evidence in relation to the way the loss is made up', in circumstances where the quantum of the claim was conceded by Mr Cook.[18]

At a glance

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Judgment (126 paragraphs)

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Legislation Cited (48)

Cases Cited (6)