Hi All,
Leading on from my prior thread, it's been about 4 weeks or so since I got in contact with my lawyer (who Im questioning knowledge on despite being a specialist property lawyer).
My Managing Agent cannot contact ex tenant who refuses to confirm he is giving up goods and just leaving it there refusing to remove it and make good the property. He verbally just says do whatever with it, not my problem don't want it anymore and also refuses to sign any stuff releasing his title to me.
I lawyered up a property specialist but I'm a bit confused/iffy with my lawyer and see if anyone can back sort of give me an idea as to my rights as I find it difficult to tie it back together. In his notice to ex tenant he reckons I can dispose of the goods within 7 days of issuing it to him but I found that the Part IVA of the Landlords and Tenants Act (1958) has been effectively repealed by Part 4.2 of the Australian Consumer Law and Fair Trading Act (2012) which basically says I need to notify him and can dispose after 90 days if he is uncontactable (my MA says his registered post bounces). Yet we cannot dispose his goods by destructing them but rather have to sell them???
We have put him on notice we are reserving our right in suing for rent loss and also damage caused and make good costs when crystallised.
I have an existing (though terminated) contract with him which is based on the Retail Lease Act which has a clause in there
5.1.4 in relation to all other items of tenant's installation and tenant's property they will be considered abandoned and will become the property of the landlord, but the landlord may remove any of the tenant's installations or other property and recover the costs of removal and making good as a liquidated debt payable on demand.
My lawyer has relied on the above 5.1.4 and when I questioned him about 4.2, he says:
Part 4.2 Allows for:
The Act is intended to enable bailees to dispose of bailors' uncollected goods in a manner that is equitable to both parties' interests. Therefore Part 4.2 allows landlords and tenants to reach their own agreement about the disposal of uncollected goods (s56(6) of the Act), and where an agreement about the disposal of uncollected goods already exists between the parties, the Act only applies to matters not dealt with by the agreement (s56(4) of the Act) which he refers back to 5.1.4 of the lease.
But MY ULTIMATE QUESTION -->
Which takes precedence and weighting over what? Last thing I want to do is the wrong thing! I'm basically trying to avoid any litigation he may come up in future if he decides to.
Really confused, any direction would help! Thanks heaps!
Leading on from my prior thread, it's been about 4 weeks or so since I got in contact with my lawyer (who Im questioning knowledge on despite being a specialist property lawyer).
My Managing Agent cannot contact ex tenant who refuses to confirm he is giving up goods and just leaving it there refusing to remove it and make good the property. He verbally just says do whatever with it, not my problem don't want it anymore and also refuses to sign any stuff releasing his title to me.
I lawyered up a property specialist but I'm a bit confused/iffy with my lawyer and see if anyone can back sort of give me an idea as to my rights as I find it difficult to tie it back together. In his notice to ex tenant he reckons I can dispose of the goods within 7 days of issuing it to him but I found that the Part IVA of the Landlords and Tenants Act (1958) has been effectively repealed by Part 4.2 of the Australian Consumer Law and Fair Trading Act (2012) which basically says I need to notify him and can dispose after 90 days if he is uncontactable (my MA says his registered post bounces). Yet we cannot dispose his goods by destructing them but rather have to sell them???
We have put him on notice we are reserving our right in suing for rent loss and also damage caused and make good costs when crystallised.
I have an existing (though terminated) contract with him which is based on the Retail Lease Act which has a clause in there
5.1.4 in relation to all other items of tenant's installation and tenant's property they will be considered abandoned and will become the property of the landlord, but the landlord may remove any of the tenant's installations or other property and recover the costs of removal and making good as a liquidated debt payable on demand.
My lawyer has relied on the above 5.1.4 and when I questioned him about 4.2, he says:
Part 4.2 Allows for:
The Act is intended to enable bailees to dispose of bailors' uncollected goods in a manner that is equitable to both parties' interests. Therefore Part 4.2 allows landlords and tenants to reach their own agreement about the disposal of uncollected goods (s56(6) of the Act), and where an agreement about the disposal of uncollected goods already exists between the parties, the Act only applies to matters not dealt with by the agreement (s56(4) of the Act) which he refers back to 5.1.4 of the lease.
But MY ULTIMATE QUESTION -->
Which takes precedence and weighting over what? Last thing I want to do is the wrong thing! I'm basically trying to avoid any litigation he may come up in future if he decides to.
Really confused, any direction would help! Thanks heaps!
