The limitations of NCAT jurisdiction

12 Jan 2021
Estate Agents Co-operative
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NCAT has not been able to determine disputes between residents of different states for some time now – causing both frustration and uncertainty for many landlords, tenants and agents in NSW.

In this article, we look at why this is the case and what it means if you are an interstate landlord.

What’s the background?

The reason for the limitation to NCAT’s jurisdiction stems from the decision in Burns v Corbett; Gaynor v Burns [2017] NSWCA 3 (3 Feb 2017) where the NSW Court of Appeal overturned two findings of ‘homosexual vilification’ made by a NSW Tribunal, against residents of Queensland and Victoria.

The complainant in both cases, Mr Garry Burns, brought an action in NCAT pursuant to the Anti-Discrimination Act 1977.

NCAT determined in both instances that breaches had occurred. On appeal, the NSW Court of Appeal ruled that the Tribunal had no such jurisdiction to make such orders.

Essentially, although Commonwealth judicial power can be delegated to state courts, it may not be exercised by non-courts – such as NCAT.

Implications for NSW Tenancy Laws

As a result of the above-mentioned case, NCAT can no longer determine disputes between parties of different states within Australia. If you have a landlord that does not live in NSW, NCAT will likely dismiss the matter if a resolution cannot be reached by consent in the first instance.

The jurisdictional issue will come into play as at the date at which an application to NCAT is made. For example, if you have a Bond dispute with a tenant, they have relocated interstate after they have vacated, and you then apply to NCAT after their move, NCAT will not be able to determine the dispute.

The most common situations impacted by NCAT’s jurisdictional limitations will be rent arrears, terminations, bonds and compensation claims.

It is important to note this does not apply to residents in ACT, NT, overseas or where a party is a corporation.

How can you bring an action against a tenant or landlord if they reside interstate?

If you commence an action in NCAT that cannot be resolved by way of mutual agreement, NCAT will decline to hear your matter. You must then:

  1. Take a copy of the letter issued by NCAT that outlines it has declined to hear your matter;
  2. Take a copy of the original NCAT application;
  3. Take a copy of the agreed settlement (if any has been reached and you wish to enforce it);
  4. Complete the ‘Federal proceedings – Summons seeking leave’ form found on the NCAT website;
  5. Complete the ‘Federal proceedings – Affidavit in support (of summons seeking leave)’ form found on the NCAT website; and
  6. Proceed to lodge the documents with either the Local or District Court depending on the monetary sum in dispute (the Local Court can hear matters up to $100,000).

Needing to pay any additional fees is unlikely. However, it is recommended you obtain independent legal advice prior to taking these steps as it is a different process to that of NCAT.

Some landlord insurance policies cover a set sum of legal fees. Enquire with insurers if you do decide to engage legal representation to determine if they will cover the legal costs involved.

Photo by Joey Csunyo on Unsplash

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