As the landlord had passed away, the applicant pursued the claim against the executors of the landlord's estate. The applicant argued that he should be awarded compensation on the basis of the tort of conversion for the executors' treatment of his goods. In the alternative, he stated that he should be compensated from the landlord's non-compliance with ss 64, 65, 66 and 92A of the RTA.

Held, refusing leave to proceed to an internal review:

• The original decision-maker was correct to decide that the Tribunal does not have the statutory jurisdiction to consider a claim in conversion under the RTA and she provided adequate reasons for this finding.
• The original decision-maker declined to make an order for compensation upon an assessment of the evidence and a preference of the evidence of the executors of the landlord over that of the tenant.
• The applicant could not provide a sufficient reason for why he should be allowed to give his evidence again on internal review and how he would prove that the factual conclusions drawn by the original decision maker were incorrect.
• The failure of the executors to follow the steps required by the RTA to establish termination and take possession does not provide an automatic basis for an award of compensation.
• The original decision maker had accounted for the fact that the executors did not comply with the required steps to take back possession of the property and nevertheless declined to award compensation to the applicant. The applicant did not demonstrate that there was an error in the exercise of the discretion or a relevant factor that the decision maker declined to account for.
• The abandoned goods provisions in the RTA operate whenever there are goods left at the premises after the tenancy terminates and the landlord has resumed possession, even though the executors did not follow the correct procedure to resume possession.
• The RTA does not require the landlord to store valuable abandoned property in the manner elected by the tenant or in any particular way. The only prescribed requirement under s 97B(4)(b) of the RTA is that the method of storage used is a reasonable way of keeping the property safe.

Internal review - Residential Tenancy - Tenant application - Compensation

Internal review - Residential Tenancy - Abandoned property

South Australian Civil and Administrative Tribunal 2013 s 48

Residential Tenancies Act 1995 ss 64, 65, 66, 68-70, 78A, 79, 80, 89A, 92A, 93, 94, 96, 97A, 97B, 97C, 105UA, 105V, 110

Attorney-General for the State of South Australia v Raschke & Anor [2019] SASCFC 83

Raschke v Firinauskas [2018] SACAT 19

Mr J Radbone, Radbone and Associates, for the applicant

Made under the South Australian Civil and Administrative Tribunal Act 2013, section 70(1a)

1. The applicant, Mr Rossiter, seeks an internal review of a decision of the Tribunal to dismiss his application for compensation for alleged breaches by the landlord of obligations under a tenancy agreement. Mr Rossiter was the tenant of the property at 6/120 Young Street, Parkside.
2. The landlord of the property had passed away when the original application was first brought. The tenant therefore brought his action against the executors of the estate of the deceased owner of the premises. The executors are themselves elderly and are represented by relatives. The estate has been distributed. The applicant seeks compensation from the executors for losses he says that the landlord caused him.
3. I will first summarise the decision that Mr Rossiter seeks to be reviewed before considering each of the grounds of review raised.

1. The tenant sought compensation in the sum of $40,000 for what he described as "the conversion" of his personal chattels, goods and effects by the executors of the deceased landlord. The conversion was said to have occurred when the executors dealt with the tenant's goods after the tenancy was terminated by notice. The executors denied any impropriety in their dealings with the tenant's goods and submitted that the application should be struck out pursuant to s 48 of the South Australian Civil and Administrative Tribunal 2013 ('SACAT Act') as lacking merit.
2. On 13 November 2020, the Tribunal conducted a hearing by telephone[1] with the applicant, the applicant's legal representative, and three family members of the executors. The Tribunal subsequently issued its decision dismissing the application for compensation on 9 February 2021. I will refer to this decision as the "original decision".
3. The tenancy had ended 6 years prior to the application being brought. There were copies of documents still available relating to the end of the tenancy and the way in which the tenant's goods were dealt with by the landlord.
4. In October 2014, the tenant had sought various orders in the former Residential Tenancies Tribunal ('RTT'); none of which related to compensation for the executors' treatment of his goods after the tenancy ended. It was common ground that the tenant was not in fact residing at the premises when the tenancy ended, but he continued to pay rent. He sought orders with respect to the testing of the unit for asbestos contamination, "decontamination" of his goods and his motor vehicles, that the executors provide an undercover secure area (after the decontamination process was complete) for the tenant's belongings at the landlord's expense, and relating to reimbursement of rent.
5. Mrs Harrop, the daughter of the landlord, gave evidence before the RTT that the tenant was issued with a Form 3 Notice on 1 April 2014 that gave him 90 days' notice that the tenancy will be expiring on 4 July 2014. After Mrs Harrop found that the tenant was no longer living at the property after 4 July 2014, a letter dated 18 August 2014 was sent to Mr Rossiter to indicate the landlord's position that the property had been abandoned and that the locks would be changed on 21 August 2014 if he did not return the keys.
6. As an aside, the introduction of the concept of the premises being 'abandoned' was unfortunately confusing. Abandonment by a tenant of premises is a ground upon which the landlord may apply to the Tribunal to terminate a tenancy (ss 79(f) and 94). It is evident, however, that the executors considered that the tenancy had been lawfully terminated by notice and did not need to establish a further basis of abandonment.
7. A further letter was then sent to Mr Rossiter dated 22 August 2014 with a cheque for the additional rent that he had paid. In the letter, the landlord confirmed that the tenancy had terminated on 4 July 2014 and that goods that remained at the property would be packed and stored for 28 days.
8. Mr Rossiter gave evidence before the RTT that he intended to move out of the property by 4 July 2014 however Mrs Harrop's constant inspections of the property disrupted his ability to pack his items. He agreed that Mrs Harrop gave him a couple of extra weeks to remove his items however he sustained an injury to his ankle on 7 July 2014 that hampered his progress. Nevertheless, he attended the property on 13 August 2014 with some people to help him remove his items and was told by the landlord's sister that he had abandoned the premises. The locks were changed on 22 August 2014 which Mr Rossiter said was done without his authorisation and against protest.
9. At the conclusion of the period of the landlord's obligation to pay for the goods to be stored, Mr Rossiter took over paying for the storage of his goods at the Egan's storage facility from 26 September 2014 but after a period of time he ceased making payments and he did not collect his items because of concerns about asbestos contamination.
10. The RTT dismissed Mr Rossiter's application and refunded the bond in full to the executors noting that they had incurred an expense in packing and storing the tenant's property.
11. Then, in 2020, the tenant brought the proceedings ("the original proceedings") in respect of the same events. The tenant sought compensation for the way in which the landlord took possession of the property and removed his items from the property.
12. In the original proceedings, the Member presiding over the hearing found the tenant to be disingenuous in many aspects of his evidence including in his representation of what he claimed to have lost and the value that he attributed to those items. The Member stated that the tenant took no responsibility at all for his own inability to organise the removal of his possessions in a timely fashion nor for his failure to collect his goods from storage such that they were eventually destroyed at a date well after he had taken over responsibility for those possessions.
13. The Member preferred the evidence of Mrs Harrop over that of the tenant. The Tribunal Member described Mrs Harrop as remarkably impartial despite the stress that the executors had been put under by the tenant's conduct and demands.
14. The Member proceeded to make various factual findings regarding the executors' attempts to get the tenant to remove his possessions from the property after the tenancy ended, until Egan's removalists was engaged to do so by the executors. The tenant made no attempt to remove the goods. Once the goods were put into storage by the executors, the tenant resumed possession of them at Egan's storage and started paying for the storage himself until the middle of 2015 when he stopped paying the storage accounts.
15. The tenant was legally represented in the original proceedings, with the permission of the Tribunal. The tenant alleged that the tenant's claim was in conversion_._ The Tribunal found that it did not have the jurisdiction to consider an action in the tort of conversion, as claimed by the tenant, as no such jurisdiction had been conferred upon it under the Residential Tenancies Act 1995 ('RTA') or the SACAT Act 2013 or indeed any other legislation, and that it had no other source of jurisdiction than that conferred on it by statute.
16. The Tribunal found that the termination notice that was served on the tenant on 1 April 2014 was valid and required him to give vacant possession to the executors by 4 July 2014. The tenant did not raise any issue with the notice to the executors or in the 2014 proceedings. The evidence was that he had approached Housing SA for a new bond in June 2014 and asked the executors to sign a "subject to inspection" bond release and to provide him with a reference.
17. The tenant left the premises believing it was contaminated by asbestos. It was not established when he ceased sleeping at the premises, but he was not doing so by the date of termination. It was not established that the premises were contaminated.
18. The issue for the Tribunal in the original proceedings was the nature of the executor's obligations with respect to the tenancy as at 4 July 2014, whether those obligations had been breached and whether any breach that was established was such as to warrant an award of compensation to the tenant.
19. Whilst there was some evidence of conduct by both parties that the tenancy had been lawfully terminated from 4 July 2020 and the parties understood that to be the case, there was other conduct inconsistent with that. The tenant left his goods there. He sought and obtained an agreement to move his goods out over a couple of weeks, but then did not do so. He continued to pay rent. The landlords did not make an application to the Tribunal for vacant possession and, after a further period, dealt with the goods themselves by storing them for 28 days with a third-party storage company.
20. The Tribunal rejected the executors' characterisation of the tenant's conduct as an abandonment of the premises. The Tribunal found that there was evidence that the tenant had continued to pay rent despite not living at the premises and he had left a note at the property to indicate that he was not abandoning it. The Member stated that, when the tenant refused to move, the executors should have brought an application seeking an order for vacant possession on the basis of the valid notice terminating the tenancy.
21. The Tribunal found that, notwithstanding that the executors proceeded to deal with the tenant's goods on the erroneous assumption that he had abandoned the premises, no compensation flowed to the tenant from the actions taken by the landlord in the particular circumstances of this case. This was essentially because the executors' dealings with the tenant's goods was in accordance with their obligations had they obtained an order for vacant possession.
22. The provisions of the RTA governing how a landlord is to treat goods left at premises at the end of a tenancy was outlined in detail by the Member in the original decision. It was found that the executors complied with these provisions. They had given the tenant the opportunity to go back into the unit for a day to collect his remaining possessions, but he failed to clear the unit on that day because of his fear of asbestos contamination. They had then put his goods into storage for 28 days at their expense and he was given notice that if he failed to collect the goods or take on responsibility for their ongoing storage at the expiration of that 28 days then the goods would be destroyed.
23. The Tribunal dismissed the application for compensation. The Tribunal found that the tenant had possession of his own furniture and personal effects when they were destroyed because of his own default under his contract with Egan's.
24. Below is a consideration of the applicant's grounds of review in respect of the original decision.

**Ground 1 - The Tribunal was in error in finding that it lacked jurisdiction to consider a claim of conversion

Ground 2 - The Tribunal erred by providing inadequate reasons for its lack of jurisdiction to consider a claim of conversion**

1. It is convenient to address grounds 1 and 2 together.
2. The Tribunal Member who made the original decision dealt with the jurisdictional issue at paragraphs 17-22 of the original decision. The Tribunal Member observed that the Tribunal has exclusive jurisdiction over tenancy disputes pursuant to s 24 of the RTA. She further observed that the Tribunal is not a court and does not have inherent jurisdiction. She stated that there is no statutory jurisdiction conferred to consider an action in tort of conversion. She rejected the argument that the Tribunal had an "associated jurisdiction" that allowed it to consider a common law action in tort.
3. I consider that the Tribunal Member's rejection of the applicant's argument concerning the Tribunal's jurisdiction to have been correct. Her reasons were clear and sufficient.
4. On review, the applicant's counsel observed that the Tribunal exercises, from time to time, judicial power and alluded to the Full Court's decision in Attorney-General for the State of South Australia v Raschke & Anor.[2] However, it does not follow that, as was perhaps implied, that this conferred upon the Tribunal the power to make any order that a court might make. The Tribunal is not a court and only has the jurisdiction and powers conferred upon it by statute. The conferral on the Tribunal of exclusive jurisdiction over tenancy disputes under the monetary limit does not thereby enable the Tribunal to determine a dispute howsoever framed by the parties. The scope of the dispute is constrained by the terms of the legislation and the procedure and remedies that the Tribunal is empowered to use and order. There are provisions in the legislation that describe the rights and obligations of landlords and tenants in respect of the landlord's dealings with the tenant's goods at the premises. There are powers and remedies available to the Tribunal to use in the determination of those disputes. The statutory scheme does not confer or describe any action in conversion, and there is no power in the Tribunal to make findings or orders regarding the parties' rights or liabilities in conversion.
5. The applicant's submissions in this regard are unarguable, as the Tribunal Member found. I do not grant leave to proceed for the purpose of ventilating that issue further. Grounds 1 and 2 of the Grounds of Appeal may not be pursued.

Ground 3 - The Tribunal failed to consider the applicant's alternative claims for destruction of his property due to breaches of ss 64, 65, 66 and 92A of the RTA

1. The RTA contains several provisions which establish specific bases for a landlord or a tenant to make a claim for compensation against the other. Examples include sections 68 and 69 which create rights and obligations the breach of which give rise to a possible claim for compensation. In addition, s 110 of the RTA confers on the Tribunal a set of powers which provide the mechanism by which the Tribunal makes awards of compensation to a party to a residential tenancy agreement for breaches and losses that arise in circumstances outside the specific grounds. Quite often such an award arises out of the breach by one of the parties of a term of the residential tenancy agreement or a statutory term imposed by the Act. Where the provision that is breached does not expressly confer a right to compensation, the source of the power to make the award of compensation is s 110, and not any of the other provisions of the Act that impose obligations on one party or another. Thus, apart from ss 68-70, 78A, 80, 89A, 93, 94, 96, 105UA and 105V which confer particular rights to claim compensation but are not relevant to the applicant's circumstances, the other provisions to which he refers are not the source of an entitlement to compensation.
2. Some of the sections nominated by the applicant as giving rise to a right to compensation, such as ss 65 and 66, create criminal offences. The Tribunal has no power to determine whether a criminal offence has occurred, as the Tribunal Member observed in the original decision. Where a party has breached a provision that creates a criminal offence, the Commissioner for Consumer Affairs or some other prosecuting authority may be informed so that they may decide whether to bring a prosecution. Prosecutions occur in only a very small number of instances of breaches. Whether or not such a breach may give rise to an award of compensation under s 110 in an exercise of the Tribunal's broad power to make such an award, is a matter for determination on an application for compensation.
3. In this case, it was open to the Tribunal to make an award under s 110 for breaches of the landlord's obligations under the provisions governing the landlord's actions with respect to the tenant's goods after the termination of the tenancy. However, the Tribunal declined to make such an award, because upon hearing the evidence, the Tribunal considered that in all but one respect the executors had acted in a manner that was consistent with their obligations under the RTA and that no award of compensation was warranted. The Tribunal's conclusions in this regard reveal no error of law and were reached primarily on a preference for the evidence given by the landlord's representatives over the evidence given by Mr Rossiter.
4. On review, fresh evidence is received at the discretion of the Tribunal. The applicant's position was that if he were permitted to do so, he would give evidence about the events in 2014 with a view to establishing to the Tribunal on review that his evidence should be accepted. During the argument on the application for leave, the applicant's representative was asked to provide reasons as to why, after a comprehensive oral hearing at which evidence was taken, and at which the applicant was legally represented, the Tribunal on review should permit the applicant to revisit his evidence, and how he would establish that the Tribunal reached the wrong factual conclusions in the original proceedings. However, the applicant did not have a sound basis for seeking a second opportunity to provide his evidence to the Tribunal. There was no oversight, no error of approach and no new information that might militate in favour of allowing the applicant to give his evidence again.
5. Whilst the review is by way of rehearing, there are two qualifications. The first is that the applicant must establish that he should be granted permission to proceed, and the second is that on a review the Tribunal must have regard to the original decision and give it such weight as is appropriate. On matters of fact, where a party has given oral evidence and, in this case, been represented by counsel, and does not propose to advance different or new evidence, there will rarely be a basis to allow a party to simply give their evidence again. Nothing was advanced that suggested that this was one of those rare cases. Permission to proceed with this ground of appeal is refused.

Ground 4 - The Tribunal was in error not to make an award of compensation arising from the executor's failure to seek a Tribunal order before taking possession of the property

1. The Tribunal Member was critical of the executors for their failure to adopt the proper procedure required to take possession of a property which was the subject of a residential tenancy agreement. The executors had served the tenant with a valid notice of termination which had the effect of terminating the tenancy. However, the scheme of the RTA is that even where it is clear that a tenancy has terminated, taking possession where a tenant has not left the premises is a step that requires the authority of the Tribunal. The executors of the landlord's estate did not do this. Further, s 92A of the RTA renders a notice of termination ineffectual if the landlord does not apply for an order for possession of the premises within one month after the day on which the tenant was required to vacate the premises as described in the notice. The executors argued that when they took possession of the property on 22 August 2014, they believed the property had been abandoned. Abandonment is also a ground for termination of a tenancy. Although the tenant was not living at the property, the Tribunal Member found that on the evidence before her, the tenant had not abandoned it. There is no doubt, as acknowledged by the Tribunal Member, that the executors did not follow the steps required under the RTA to give effect to the valid notice of termination and take back possession of the property.
2. However, the failure of the executors to follow the steps required by the RTA to establish termination and take possession does not provide an automatic basis for an award of compensation. The Tribunal Member made this point at paragraph 27 of the original decision. She also went on to explain that the executors' actions might have been the subject of a prosecution at the time but that this was a separate matter. Nothing can or should be assumed from that observation, in particular that the circumstances of non-compliance warranted prosecutorial action. More importantly, there was nothing in the written claim made by the tenant (either the claim made when the events occurred in 2014 or the claim made in 2020 that gave rise to the original proceedings) that sought compensation for the executors' failure to take possession under the correct procedure. Mr Radbone, Mr Rossiter's counsel, submitted in the argument for leave that he raised allegations regarding the manner of terminating or taking possession during his oral submissions in the original proceedings. In other words, having put in a written application for compensation, and written submissions in support, the application for compensation arising out of the landlord's action in the manner of terminating the tenancy was not identified until mid-way through the hearing. To that point, the whole of the claim had focused upon the treatment of the tenant's goods and not on the manner in which the termination or possession occurred.
3. It is evident that irrespective of whether or not the Tribunal Member mentioned this additional basis for his claim in her reasons, it was rejected in her finding that "the tenant is very much the author of his own problems in every respect".[3] In addition, she found that although the executors did not seek an order for vacant possession, they then followed the steps required under the RTA for dealing with property that had been left behind following a termination.
4. Critical to understanding the Tribunal Member's reasons for the original decision, is that she had found that the notice of termination was valid. Further, the Member made findings on the tenant's actions after receiving the notice, such as asking the executors to provide him with a reference and to sign the bond release, which were consistent with him accepting the termination and preparing to leave the premises. It was also consistent with his view that the premises were dangerously contaminated by asbestos. Mr Rossiter's evidence before the RTT during the proceedings in 2014 was that it was his every intention to vacate on 4 July 2014 but he did not do so due to disruptions to his packing and an injury he sustained. The parties operated on the basis that the tenancy had come to an end and the tenant was in the process of vacating the property. The key issue that was in dispute was the amount of time that the tenant was given to vacate the property and remove his personal belongings. The executors extended the date on which the tenant had to vacate the property and when he did not move out by the extended date, they made a number of subsequent requests that he move out of the property. The tenant still did not move out of the property. The executors then eventually took back possession of the property after indicating to the tenant that they would do so.
5. Although the executors did what was required of them to terminate the tenancy, the legislation nevertheless requires a landlord to not take matters into his or her own hands to remove a tenant but to seek an order for vacant possession from the Tribunal. It was this step that the executors did not take and the Member acknowledged this. Even though the executors did not follow the process required to take back possession, it could not be said that the tenant believed that the tenancy had not been terminated and that he did not have to vacate the premises. The tenant's claim and the amounts of compensation sought relate entirely to the damage that he says was caused to his personal items when they were removed and stored. There was no evidence in the original proceedings or on internal review, of any loss suffered by the tenant solely because the executors took back possession of the property on 22 August 2014. In fact, the evidence put before the Tribunal Member was that the tenant had disconnected the telephone and gas from the premises on 13 August 2014 and had not been living at the premises since 3 July 2014. For all intents and purposes, the property was only being used by the tenant to hold his personal items.
6. I reject the suggestion that the applicant has an arguable case that he should have been awarded compensation for the executors' failure to seek an order for vacant possession.

Ground 5 - The Tribunal erred in finding that the abandoned goods provisions applied when it was found the applicant had not abandoned the property

1. This ground can be disposed of briefly. The abandoned goods provisions in the RTA (sections 97-97C) deal with property left at premises when the landlord has resumed possession. Those provisions apply whether or not the premises have been abandoned, either in the ordinary sense of the word or in the sense attributed to the word in ss 79(f) and 94 of the RTA. The abandoned goods provisions do not operate only where the tenancy has terminated because the tenant has abandoned the tenancy. They operate whenever there are goods left at the premises after the landlord has resumed possession. It is beyond doubt that the abandoned goods provisions of the RTA governed Mr Rossiter's goods left at the premises, even though the executors did not follow the correct procedure to resume possession. I refuse leave to proceed to argue that ground.

Ground 6 - The Tribunal erred in a factual finding made regarding the applicant's goods

1. The applicant argues that the Tribunal erred in finding that his goods were kept undercover for a period of 28 days because he had attended the storage facility after 27 days had passed and found his items outside and exposed to the weather. The relevant factual findings were made at paragraphs 16(cc) and (dd) of the Tribunal's original decision. The Tribunal Member found that:

The goods were initially in secure undercover storage and then moved into a storage bin in the external section of Egan's premises after 28 days had elapsed. The tenant attended Egan's premises towards or at the end of the expiration of the 28 days and he was shown his personal items which were in an outdoor area and were under a plastic cover in a metal container.

1. It is clear from the Tribunal Member's findings that she acknowledged that the items were stored outside and protected by a plastic cover. To the extent that applicant seeks to argue that the Tribunal Member incorrectly found that his items were stored undercover because undercover means "indoors", I do not find that such an argument has any reasonable basis. There is no textual basis for such an interpretation of the wording of the requirement in the RTA.
2. Having regard to the documentation provided by the storage facility and the landlord's evidence, the Tribunal Member accepted, at paragraph 35 of the original decision, that the goods were properly stored and recorded as being in poor condition at the time that they were stored. Further, the tenant visited the storage facility at which the executors had placed his goods within the 28-day period that the executors were required to keep them, and

elected to keep them at Egan's storage facility (rather than move them to his other storage unit at Melrose Park) and he continued to pay for the storage after the landlord ceased making payments for the storage at the expiration of the 28 days required under the RTA.[4]

1. The provisions of the RTA regarding the treatment of valuable property left at the premises after the landlord has taken possession, only require the landlord to "as soon as practicable, make reasonable attempts to notify the tenant that such property has been found on the premises" and to "take reasonable steps to keep the property safe until at least 28 days after possession of the premises is recovered".[5] The RTA does not require the landlord to store valuable abandoned property in the manner elected by the tenant or in any particular way. The only prescribed requirement under s 97B(4)(b) of the RTA is that the method of storage used is a reasonable way of keeping the property safe. It is clear at paragraphs 34-36 of the original decision, the Member had found that this criteria had been fulfilled by the landlord.
2. The evidence was given some six years after the events. The Tribunal Member made clear and unequivocal findings preferring the evidence of the executors over the evidence of the applicant. The applicant has not demonstrated that the Tribunal Member made an error in reaching her factual findings on this issue and I would not grant leave in that regard.

Ground 7 - The Tribunal erred in finding that the applicant failed to collect his goods from the facility

1. This ground fails for the same reasons as ground 6. The basis for the applicant's arguments was not made out in his written submissions. Permission will be refused on this ground.

1. The tenant's application to proceed to an internal review is refused.

[1] During a period in which the Tribunal was conducting the majority of its hearings by telephone in order to restrict the number of persons attending the Tribunal premises due to COVID-19.

[2] [2019] SASCFC 83. See also, the original proceedings decision in Raschke v Firinauskas [2018] SACAT 19.

[3] Original decision of the Tribunal dated 9 February 2021 in proceedings 2020/SH004888 at [36].

[5] Residential Tenancies Act 1995 (SA) s 97B(4).