Read the background of this case: Interstate Landlords and NCAT the issue explained – Burns Case – High Court Appeal
Burns v Corbett High Court Decision
On 18 April 2018 the High Court of Australia handed down its decision in the appeal of Garry Burns v Tess Corbett & Ors  HCA 15. The High Court unanimously dismissed the five appeals from the Court of Appeal of the Supreme Court of NSW where it found that the Civil and Administrative Tribunal Act 2013 (NSW) did not confer on NCAT the power to hear matters between residents of different States. The decision is now final and can be appealed no further. What this means for Real Estate Agents in NSW is that NCAT categorically does not have the power to hear matters where a Landlord or Tenant resides in a State other than NSW.
What happens from here?
The NSW Parliament will need to redraft the Civil and Administrative Tribunals Act (the Act that sets up the powers of NCAT) which will allow NCAT to sit as a State Court when matters of residency arise. In the alternate, as we have advised in the past, matters should still proceed by normal application to NCAT drawing to the attention of the member that one of the parties is a resident of a different state. From here if the matter can be settled between the parties well and good, however, if this does not occur then the member, pursuant to Federal Diversity Jurisdiction would have the matter remitted to the Local Court from NCAT so the matter can be heard by a Local Court Magistrate.
The good news is the position is now clear and all of the speculation as to what NCAT can or can’t do is finalised.
Jemmeson & Fisher are the providers of real estate legal advice to EAC and Lisa Jemmeson represents EAC on the NCAT Consumer and Commercial Division Consultative and General/Commercial Forums.
Members of EAC can utilise the assistance of Jemmeson & Fisher who can advise you on how to proceed with matters in the Local Court. To obtain legal advice, please call 1300 137 161.