Pomeroy v Thwaites Witham & Krantz No. DCCIV-98-716 Judgment No. D80 [1999] SADC 80

"(a) the plaintiff did not ascertain until July 1997 that Roger Kearns, auctioneer and valuer, was of the opinion that certain of the plaintiff's goods were valued at $27,760.00;

(b) the plaintiff did not ascertain until October 1997 that Ernsmiths were prepared to replace certain of the plaintiff's good for $3689.70;

(c) On 27th October 1997 the plaintiff ascertained for the first time that the defendants would not consent to her application to the Tribunal dated 4th August 1992 being re-instated; and

(d) On 6th November 1997 the plaintiff ascertained for the first time that the defendants would not consent to the jurisdiction of the Residential Tenancies Tribunal to hear a claim by the plaintiff where the claim exceeded $25,000.00;"

3 The defendants deny the relevant allegations. The defendant agent claims all of its actions were proper and it had at all times acted in accord with orders of the Residential Tenancies Tribunal.

4 Both defendants denied because of the factual background that the matters as pleaded could not amount to "material facts" within the meaning of the section.

5 The matter came on for hearing on 7 April, 1999, on the plaintiff's preliminary application seeking an order to extend the time in which to bring her claim.

6 The plaintiff gave evidence as well as her former solicitors, Mr Harley, Mr Bowler and Mr Baldock. The hearing of the matter was completed on 27 May, 1999.

7 The plaintiff confirmed that she occupied a flat at 11 William Street, Burnside which she had rented from the agents, L J Hooker at Kensington, a business operated by the first defendant. The plaintiff described the flat as a "single bedroomed home unit". She thought the rental was $90 and the lease was for six months. The plaintiff agreed that she had fallen behind in her rental payments. She said that during that time she had received from the agents what she called "a little notice" requesting her to pay and on receiving that notice she said she paid her rent.

8 However, she said she left the unit after she received a letter from the Residential Tenancies Tribunal advising her that she had to leave the unit. She said she spoke by telephone with a person at that Tribunal and asked for several days in which to remove her goods, but, she was advised they could not grant that extension. She said she also telephoned a person at the agent's office and again was advised that she could not have an extension.

9 The plaintiff said she then had to decide whether to go to her work or endeavour to remove her goods from the house. She said she decided she would go to work because she thought "things could be worked out". However, she said when she finished her shift she returned home and found that the locks on the unit had been changed.

10 The plaintiff said she spoke with the first defendant's property manager who, she said, kept making excuses, and, she was advised that she had to remove her goods all at the one time. Eventually in February 1992 she ascertained that her goods had been sold.

11 The plaintiff said acting on some informal advice she endeavoured to get values of her goods by attending stores like John Martins and Ernsmiths.

12 The plaintiff said that after the initial hearing and the order of the Residential Tenancies Tribunal of 15 September, 1992, she sought legal advice and was referred by Legal Aid to Mr Bowler at Hume Taylor & Co. She also spoke to Mr Guy Harley.

13 However, she said she terminated Mr Bowler's instructions and again sought the advice of Mr Harley who advised her of the difference between assessing her claim on the new retail price of goods as distinct from their market value.

14 The plaintiff said in 1994 she sought advice from the firm, Grope Hamilton, and dealt with Mr Baldock who acted for her for approximately an 18 month period. She remembered that Mr Baldock mentioned to her that a summons would have to be issued within a certain time period. However, during 1997 she became unhappy with the services of Mr Baldock and returned to seek the advice of Mr Harley.

15 The plaintiff said in further discussions the issue was again raised about the value of her goods as distinct from retail value. On the advice of Mr Harley, she then approached a Mr Kearns and asked that he prepare a valuation of the goods that she alleged she had lost. That valuation was prepared by Mr Kearns in July 1997.

16 Mr Kearns, in the preparation of his valuation, noted that the valuation was on the basis of the goods "by description" and valued the loss of the plaintiff's furniture, effects and jewellery in the sum of $30,390. That valuation had attached to it a letter from Ernsmiths, dated 20 July 1992, quotes from Wendts Jewellers and Voivodich Jewellers, dated 20 July 1992, and valuations from Outback Experience - Opal Replacement Valuation, dated 14 September 1992, Vogue Furniture and Robin P Choat Replacement.

17 The plaintiff said she believed that after the Kearns' valuation was obtained she asked for another hearing before the Tribunal, but, said the agent was not prepared to agree to that matter being reinstated. The Residential Tenancies Tribunal then made an order that it had no jurisdiction to entertain the plaintiff's claim.

18 The plaintiff said Mr Harley on 21 May, 1998, issued the proceedings in this court against the defendants claiming damages for their alleged wrongful acts in selling her personal items.

19 From the tendered documentation the following appears to be the history of the proceedings of the Residential Tenancies Tribunal:

(i) 4 June 1991 - Agent's application terminating tenancy and possession on grounds of rental arrears

Finding on 12 June, 1991 : Tribunal satisfied plaintiff given notice - on evidence of agent:

1. On 28 April, 1990, six month tenancy and continuing.

3. On 17 May, 1991, notice of termination was served on tenant seeking vacant possession and finding rent owing at termination of $655.72. On 13 June, 1991, the following orders were made:

"(1) Pursuant to Section 73 of the Act, I order that this agreement terminate and I make an order in favour of the landlord for possession of the subject premises at 12.00 noon on Wednesday 19 June 1991.

In making the above orders, I am satisfied that there is no person to whom section 81 of the Act applies.

(2) Pursuant to Section 33(3) of the Act, I order that the security bond of $340.00 held by the Tribunal (Bond No. 273454-5) be paid to the landlord via the agent.

(3) Pursuant to Section 22(1) of the Act, I order that the tenant pay to the landlord via the agent the sum of $315.72 within 28 days of the below date; failing which a Certificate shall issue pursuant to Section 22(4) of the Act upon the written request of the landlord to the Registrar for enforcement of this order in the Local Court."

(ii) 4 August 1992 - plaintiff's application for compensation for losses by reason of the sale of her goods

On 15 September, 1992, Tribunal explained to plaintiff jurisdiction only to sum of $25,000. Plaintiff said her claim was for $45,000. "I said that the application can be pursued before the appropriate court and gave leave to Ms Pomeroy to withdraw her application."

"The Tribunal gives leave to the tenant to withdraw her application to the Tribunal, but also gives leave for the application to be reinstated upon receipt by the Tribunal of written consent by both the tenant and the landlord to the application proceeding before the Tribunal to seek an order to the limit of $45,000 (or such other amount as the parties' consents may refer to)."

(iii) 14 August 1992 - plaintiff's application couched as follows:

"Because I was unable to collect all at once, my goods were auctioned as 'abandoned goods'. I was not informed of the legal time of 60 days of holding of goods and have been thru 'hardship' because of this woman's attitude. Enclosed is a list of goods and value. I do believe the value should be return and appropriate (considerable compensation) repaid.

Please note that no rental were owing to the land agent.

Estimates of replacement value of these goods are being collected (some are enclosed).

Compensation for the stress and hardship that this situation has put me through should be estimated at another $50,000."

Such application was accompanied by three pages of itemised goods and quotes from Wendts Jewellers, dated 16 July, 1992; Class "A" Manufacturing Jeweller, dated 22 July, 1992 and Vogue Furniture.

On 27 October, 1997, (assume orders made for service on agent) applicant given seven days to quantify her claim and subsequently provided "quantification" in the sum of $48,000.

On 6 November, 1997, agent and landlord had advised Tribunal they were not prepared to agree to Tribunal hearing application. Order made that as Tribunal only had jurisdiction to hear and determine monetary claim not exceeding $25,000 and as agent and landlord were not prepared to consent to Tribunal hearing application, the Tribunal had no jurisdiction to entertain application and same struck out.

20 The plaintiff in cross-examination agreed that when she issued her initial proceedings in August 1992 in the Residential Tenancies Tribunal to recover the cost of the goods she alleges were wrongfully sold she claimed a total value of "approximately $45,000" and that the list did contain her written description of all of the goods, including a letter from Wendts Jewellers and Vogue Furniture certifying the value of certain goods. She confirmed that she had obtained the values of many items from attending John Martins.

21 The plaintiff confirmed that she made her subsequent application to the Residential Tenancies Tribunal seeking to recover her loss and considered the value of her goods was about $45,000 or a bit lower, but "it was in that range'.

22 This value was confirmed by a letter from her solicitors, Hume Taylor & Co to the agents dated 2 October, 1992, when the solicitors set out the nature of their instructions, being the wrongful sale of her property and that the value of the same was about $45,000.

23 The plaintiff confirmed that it was at the suggestion of Mr Harley that she obtained the Kearns' valuation, and, was aware that Mr Kearns valued her goods at considerably less than the initial figure of $45,000.

24 Mr Harley gave evidence. He said he believed he first spoke with the plaintiff in August 1992 and she finally retained him in November 1997. He said at the early time when she attended him she advised him that her lease had been terminated and her goods wrongfully removed by the agent and sold. He said his memory was that the plaintiff placed the value of her goods at a figure between $40,000 and $60,000. He said he advised her that the measure of her loss was the market value of her goods rather than the actual cost of the same, and, it was his memory that the plaintiff rejected that advice.

25 He said he next recalled that the plaintiff spoke to him in 1997 and was upset about prior advice. He then referred her to Mr Kearns. After receiving that valuation he confirmed that proceedings could then be instituted. He said there were discussions about the action being commenced in the Magistrates Court, but this summons was issued by him on the plaintiff's instructions on 21 May, 1998.

26 Mr Bowler gave evidence and outlined his initial dealing with the plaintiff in 1992. He said after seeing her he wrote the letter of 2 October, 1992, to the agent alleging their improper conduct and claiming the value of the lost property in the sum of $45,000. This was the figure the plaintiff had informed him was the value of her goods. He said his note was as follows:

"I valued all the stuff that I had. I calculated it to be about $45,000 worth."

27 He said after this letter was sent, he was contacted by the agent. He said that he believed in March 1993 he received advice from the plaintiff that she was seeking other advice.

28 Mr Baldock, a solicitor, gave short evidence confirming that in 1995 he was involved with the firm of Grope Hamilton when the plaintiff contacted him in late 1994 or 1995 to act on her behalf. He believed that prior to this time a Mr Condon had been acting for her. Eventually he obtained the file from the plaintiff's former solicitors and he believed at this stage he was advised that the plaintiff's final total of lost goods was $41,202. That was contained in a schedule of items and their value he had received from the plaintiff.

29 Mr Baldock said he advised the plaintiff of details about the jurisdictional limit of the Magistrates Court and District Court. He wrote to the plaintiff on 2 July, 1997, concerning the attempt to have the matter re-listed in the Residential Tenancies Tribunal. He advised the plaintiff that this could only be done with the consent of the agent. Subsequently his instructions were terminated.

30 As I mentioned, the plaintiff's application for an extension of time was based on four grounds. They were pleaded as follows:

"(a) the plaintiff did not ascertain until July 1997 that Roger Kearns, auctioneer and valuer, was of the opinion that certain of the plaintiff's goods were valued at $27,760.00;

(b) the plaintiff did not ascertain until October 1997 that Ernsmiths were prepared to replace certain of the plaintiff's good for $3689.70;

(c) On 27th October 1997 the plaintiff ascertained for the first time that the defendants would not consent to her application to the Tribunal dated 4th August 1992 being re-instated; and

(d) On 6th November 1997 the plaintiff ascertained for the first time that the defendants would not consent to the jurisdiction of the Residential Tenancies Tribunal to hear a claim by the plaintiff where the claim exceeded $25,000.00;"

31 The first defendant in response to such allegations pleaded as follows:

"26.1 That the facts alleged are not material to the plaintiff's claim.

26.2 That it is not just in the circumstances of the case to grant the extensions of time sought.

26.3 It does not know and therefore cannot admit the allegations contained in sub-paragraphs 22(a), 22(b), 22(c) and 22(d) of the Statement of Claim.

26.4 Denies that the plaintiff ascertained any material facts within the twelve month period prior to the institution of the within proceedings.

26.5 That the plaintiff was aware of the value of the goods (which value is denied) prior to the dates alleged in paragraphs 22(a) and 22(b)."

32 The defendants referred to the numerous occasions since 1992 when the plaintiff has endeavoured to quantify her loss, commencing in August 1992, of a sum of $45,000 and repeated by her solicitors in October 1992 by a demand of "approximately $45,000", and, repeating this sum thereafter. Consequently in July 1997 the Kearns' valuation was obtained which did not amount to a "material fact".

33 The second defendant filed a similar document again reciting in detail all the relevant information provided over the years by the plaintiff about the alleged value of her goods.

34 As appears from the above summary the plaintiff's right of action against the defendants expired in late September or early October 1997. These proceedings were commenced in May 1998, approximately seven months out of time. The plaintiff is entitled to an order as sought if material had been obtained within twelve months before the date of commencement of proceedings and in all the circumstances it is just and expedient to grant such an application.

35 The word "material" has received much judicial comment. A fact must be relevant to the issues and/or of sufficient importance to be likely to have a bearing on the case. See Sola Optical Australia Pty Ltd v Mills [1987] HCA 57; (1987) 163 CLR 628 at 636.

36 One is sympathetic to the plaintiff in the dilemma that she faced following the termination of her tenancy. There may have been many factors involved but, despite her evidence, clearly there was a serious shortfall in her rent and, on the face of the relevant Tribunal orders, she was properly evicted.

37 I accept her evidence that she had lost all of her clothing, personal belongings and furniture.

38 The debate about the quantum of her loss has been ongoing and, by the time of her application to the Residential Tenancies Tribunal in August 1992, the plaintiff had itemised her lost goods and made enquiries from two jewellers to quote an approximate retail replacement value of some goods and as well Vogue Furniture and then assessed her overall loss at $45,000. It also appears she had obtained the cost of new electrical items from Ernsmiths in July 1992 as well as from Voivodich Jewellers for the replacement cost of jewellery and from opal experts for replacing opals in September 1992.

39 Thereafter one has to say that the plaintiff's actions through the numerous solicitors, from her point of view, has been rather disastrous.

40 I am not critical of the manner in which the plaintiff gave her evidence. Clearly she was doing her best to accurately recall all of the events which have occurred over the years in this unfortunate sage.

41 However, her case comes down to the material facts alleging that:

1. A licensed valuer was in July 1997 in a position to comment on the value of goods by description and assess them in the sum of $30,390.

2. The fact that the defendants in October or November 1997 would not consent to the increase in the Residential Tenancies Tribunal's jurisdiction to hear such claim.

42 The plaintiff, in the year following her eviction, had a detailed list of all of her missing goods and had spent considerable time ascertaining retail values of the same as well as replacement values of jewellery and clearly was of the view that her loss was in the region of $45,000. The plaintiff had gone to John Martins and also had various personal effects valued by various organisations. When in October 1992, the plaintiff first spoke to Mr Harley she was advised on the basis of her claim and particularly the issue of damages and the measure of her loss being the market value of her goods. In Mr Harley's words, she rejected that contention. Thereafter the plaintiff's actions were based in the main on the retail cost of the goods. The letter of demand of 2 October, 1992 stated:

"Our client was advised in the early part of this year, that her property had been auctioned. This auction apparently took place some time in October, 1991 although our client received no advice or information regarding the proposed auction. Our client subsequently attended on the Auctioneers, also L J Hooker and was provided with a list of some forty-two items which were auctioned. Our client has received an amount of approximately $700.00 by way of proceeds from the auction. Our client has obtained various valuations in respect of the property and the approximate value of all of her property left at the unit at Burnside Court is about $45,000.00."

43 However, by February 1995 the solicitors, Grope Hamilton, assessed in the sum of $41,902 on a "replacement value basis".

44 In July 1997, when Mr Harley had directed her to obtain the valuation of the goods from business consultant, Mr Kearns, those items were identical with the list she had provided in 1992.

45 The plaintiff, since 1992, has been aware of the distinction between the actual cost of new items as distinct from their actual market value. The plaintiff was obviously loathe to accept this advice, although by the time of the demand by Mr Baldock in February 1992 there was a reduction in the quantum by reference to "replacement value".

46 The plaintiff was then aware of the difficulties in quantifying her loss of "about $45,000". By July 1997, Mr Kearns was of the view that her loss was $30,390, relying on many of the items valued by the experts in February and July 1992.

47 I have some difficulty in finding that the Kearns' valuation amounted to a "material fact" within the meaning of the section. The plaintiff at that time was aware of the variance in figures and the ongoing debate of the true measure of her loss. It is simply a regurgitation of her loss. It can be seen as a more accurate assessment of the loss.

48 The assessment of loss in this type of case is conjectural. A valuation may be right or wrong. A valuation by description is clearly open to much debate. The goods in question had a significant value. However, the Kearns' valuation is based on the plaintiff's description of her goods and is no doubt speculative and can hardly be called decisive.

49 I do not consider that the Kearns' valuation can be sighted as a "material fact" within the meaning of the Act.

50 The second limb is concerned with the defendants' refusal to consent to the Residential Tenancies Tribunal hearing the plaintiff's claim for compensation. The plaintiff has been aware since the order of 15 September, 1992, of the maximum jurisdiction of $25,000 of the Tribunal, and, in November 1997 her claim was struck out for want of prosecution. The defendant has never given any indication of a consent to confer jurisdiction on the Tribunal.

51 I do not consider, in view of this background, that the refusal to consent to jurisdiction is a basis for such an allegation being a "material fact".

52 I have much sympathy for the plaintiff because of all these troubled events which obviously overtook her life in 1992 and her subsequent actions. Clearly the plaintiff in 1992 sought legal advice as well as at that time also seeking some advice from Mr Harley whose evidence was quite specific that he advised her on the proper basis in which she should proceed with her claim. Following that time she had also sought advice from a number of solicitors.

53 I accept the evidence of Mr Baldock that he advised the plaintiff in respect of the relevant information concerning the time in which to institute proceedings. An appointment was made for this purpose, but the plaintiff did not attend. In the letter of 2 July, 1997, Mr Baldock advised the plaintiff the limitation period would expire in September 1997. By July 1997 the plaintiff had already instructed Mr Harley, but it seems the plaintiff did not in that time cause any proceedings to be instituted.

54 I bear in mind that the valuation of Mr Kearns in July 1997 was at a time when she could have brought her proceedings, but, there is no explanation why proceedings were not instituted by July.

55 Unfortunately it is my view that this is not a matter where I should exercise my discretion to extend the time to enable the plaintiff to institute her proceedings.