NCAT tips, tricks and insights from our legal specialists

17 Mar 2021
EAC
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It is an unfortunate aspect of the job, but at some point (or many points) in your career as a property manager you will inevitably have to attend the NSW Civil and Administrative Tribunal (NCAT).

The main reasons for attending NCAT are rent arrears and bond disputes.

In this article, we outline the NCAT process and help you navigate your next tribunal appearance – and though we make it sound simple here, we must warn you, NCAT is rarely black and white!

Commencing Proceedings

If negotiations between two disputing parties fail, whether in relation to rent arrears, damages or terminating the tenancy, one party will need to apply to NCAT.

The applying party is called the Applicant and the other party is called the Respondent.

More often than not, if a tenant is applying to NCAT, they will put the agent’s name as the opposing side. The first step NCAT will take, if this happens, is to change the name that of the landlord – because the tenant and the landlord have a contract together (being the lease agreement).

If you are applying on behalf of the landlord

  • The landlord’s name is the Applicant but you can list all your own contact information so you receive the documents on behalf of the landlord.
  • You can apply online or complete the paperwork manually and lodge it personally at an NCAT registry or via post. Online is the easiest and currently costs just under $54 (including credit card fees). Your MAA will likely cover you for these costs so the agency can be reimbursed.
  • The online application process takes you through each step and assists you in selecting which orders you require. Don’t stress if you get something wrong – NCAT is generally lenient in allowing you to amend orders you seek down the track, especially if the situation changes. Examples of this may include situations where you initially request an order for rent arrears and possession but during the process the tenant vacates so your orders will change to only seek rent arrears.
  • Always ensure you put your mobile number on the application – NCAT prefers direct phone numbers and not office lines.
  • Once you have filed the application, a copy will be automatically sent to the tenant. You must therefore ensure that the tenants email addresses are correct.
  • Due to COVID-19, NCAT is temporarily conducting hearings via telephone, so it requires the Applicant to provide the documents they intend to rely on for the initial hearing to the Tribunal and the tenant before the initial hearing. Previously, there was no requirement to do this.
  • You can expect the initial hearing to be listed within two-to-five weeks filing your application, depending on the NCAT backlog.
  • You will receive a notice of an initial hearing which is scheduled for a maximum of 15 minutes. NCAT may not call at the exact scheduled time so you are expected to be available for up to an hour from the time allocated.
  • During the allocated time, you must be prepared to negotiate and narrow down the main issues in dispute. The tribunal member will try and assist where possible. The member will also make interim orders to change the application if they need to (such as the names of the parties) and if no agreement can be reached, they will set the matter down for a formal hearing and outline a timetable for the exchange of evidence.
  • After the hearing, you will receive a copy of any orders made via email as well as a new hearing notice. More often than not, the hearing is scheduled for a minimum of four weeks later. You must keep this in mind if rent arrears are continuing to accrue and manage your landlord’s expectations.

Receiving an application on behalf of a landlord

  • If you receive a hearing notice on behalf of a landlord, whether you agree with it or not, you must be prepared to defend the allegations raised.
  • Instructions for preparing evidence will be outlined on the hearing notice so pay close attention to it.
  • Regardless of whether the other party complies with timeframes for evidence, you should always comply. NCAT has complete discretion that you may not be aware of, to extend timeframes or consider evidence at hearings.
  • You must email NCAT, at least seven (7) days before the hearing, with your preferred contact number and be available at the listed time.
  • If you are not available, NCAT will likely not adjourn the matter – it takes the view that there are other property managers within your organisation who can assist where possible.

Preparing for the hearing

  • NCAT has very strict guidelines for how evidence should be presented. You must:
    • Number each page you are submitting for easy reference;
    • Include an index and/or chronology;
    • Provide copies of all the documents you intend to rely on – these documents may include the lease, ledger, termination notice, condition reports, quotes, invoices, coloured photos and your managing agency agreement, at a minimum.
    • Your documents cannot be filed electronically unless you get approval from NCAT prior. You must therefore either post a copy to NCAT or drop a copy to the registry. You must also ensure a copy is sent to the other party on time.

Mediation/Conciliation

  • NCAT advocates for alternate dispute resolution. If NCAT has to rule, both parties generally do not get what they want. It is therefore recommended the parties continue in their attempts at negotiating, where possible, before the hearings occur.
  • If a settlement is reached before the hearing, you are able to email NCAT and request that the application be withdrawn (if you are the applicant).

During the hearing

  • Speak clearly and with reference to your documents. Only speak when invited to do so by the member.
  • When the other party is talking, take notes of what they are saying so you are able to refer back to them if they make claims that are incorrect.
  • Do not deviate from the facts – tribunal members do not like when the matter goes off schedule or when parties talk over each other.
  • Feel free to ask the other party questions – this is akin to cross-examination.
  • Ensure when you are referencing your evidence, you can draw the tribunal’s attention to a specific document – for example, page 14 of the bundle references the termination notice. The member will appreciate being able to find the document easily.
  • Make sure you know your documents and your case back-to-front.
  • If the matter calls for it, you can ask for a Re-List. This means that you are able to email NCAT within the timeframe stipulated (normally 60 days) and ask them to re-list the application because the other party has not complied. Situations where this may arise include:
    • A specific performance order is granted requiring the tenant to pay a certain amount of rent on a day. If they fail to do so, you can request a re-list for NCAT to determine the matter for termination.
    • The tenancy is terminated and you have an order for rent arrears, but by the time the tenant actually vacates, the rent arrears have accrued so you now seek an order for more rent arrears.

After the hearing

  • Orders will be made either on the spot or reserved if the member needs to consider the evidence and submissions. In both circumstances, copies of the orders will be emailed to you.
  • Just because the hearing is over and orders have been made, doesn’t mean the matter has necessarily ended. Other avenues are available:
    • Appeal: parties have a right to appeal the matter if they believe an error has occurred or if there is new evidence that they intend to provide. Appeals must be filed within 14 days of receiving the Orders and an additional fee is payable. The Appeal will then get passed onto the Appeal Panel and a new set of directions will be issued to you. It is recommended that the parties obtain legal advice and/or representation before venturing down this path.
    • Stay: parties can apply to ‘Stay’ the Orders made – this is normally done when a party is also appealing. The Stay essentially pauses the enforcement of any orders for rent arrears or termination.
    • Reinstatement: if one party was not present at the hearing and the matter was determined in their absence, they can apply to NCAT to have the matter reinstated and re-heard, provided they have an adequate reason as to why they did not appear at the hearing. This must be done within seven days of the hearing.
    • Correction: if NCAT has made an error in their orders, whether it be typographical or numerical, you can email them and ask them to rectify. New orders will then be issued.
  • Money Orders
    • If you are successful in obtaining orders in relation to unpaid rent and the tenant has made no attempts to repay their debt, you can request that NCAT make a Certified Money Order so that your owner can enforce the debt through other avenues.
    • To do this, you email a copy of the Orders to NCAT and request a Certified Money Order. They will then send the order to you.
    • You, the landlord/their solicitor can lodge the Money Order with the local court (provided the debt is less than $100,000) and for a fee of $97.00, the NCAT Money Order becomes a Certified Judgment Debt.
    • Once your landlord has a judgement against the tenant, they can commence debt recovery proceedings through alternate means.
  • Non-Negotiables
    • Always comply with the Orders, even if the other side has not. This is particularly important for the exchange of evidence.
    • Be available on your mobile for at least one hour when the hearing is allocated.
    • Be prepared for the matter to take up to six weeks to be heard.
    • Ensure your documents are served properly and are compliant with NCAT requirements.
    • If you have to email NCAT for whatever reason, ensure the File Number and the party names are in the subject line.
    • Be patient. Be confident. Negotiate.

All forms and processes outlined above can be found on the NCAT website.

Applications can be lodged online.

For further information and advice, contact either Tanya or Sarah at HD Legal & Advisory.

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