From 28th September there has been an adjustment to the Residential Tenancy Agreement, where it now requires an agency to declare in writing to the tenant on the front page of the lease if the landlord lives in any state of Australia outside of NSW.
This may seem like a bit of a head scratcher to anyone who is not aware of the way that things have been going with NCAT recently – but let me enlighten you!
There has been a case recently (Burns v Corbett; Gaynor v Burns [2017] NSWCA 3 (3 February 2017) where it was questioned whether NCAT are able to have Commonwealth jurisdiction. The Court of Appeal found that although Commonwealth judicial power may be delegated to state courts, it may not be exercised by non-courts, like NCAT. Matters between residents of different states are in the original jurisdiction of the High Court of Australia per section 75 of the Australian Constitution. This marks them out as matters of Commonwealth judicial power and so are strictly controlled by the Constitution.
So where does this leave you as a landlord? If you reside in NSW, there is no issue for you. If you reside overseas, or in NT or ACT, there is also no issue for you. Corporations as parties make no difference. It does not matter where a corporation is registered. NCAT still has jurisdiction if a party is a corporation. If however you reside in one of the other states of Australia (QLD, TAS, VIC, SA, WA), this will mean that you will not be able to have a case heard in the NCAT forum.
You will be able to make an application to NCAT, which will then be mediated by their system to encourage an agreement between parties, but a formal hearing is not able to be heard and an order of enforcement cannot be given. You will have to have an application form for NCAT and a rejection letter from NCAT that they cannot hear the matter, then we will be able to make an application in the local court. The court is able to make the same orders that NCAT could have made.
NSW has enacted an interim measure to allow courts to hear matters dismissed by NCAT per Burns & Corbett. It allows recommencing in the Local or District Court without paying further fees. Magistrates and Judges will have discretion about costs, the rules of evidence and representation by non-lawyers. See the Justice Legislation Amendment Act (No 2) 2017 No44 (NSW).
Don’t panic – your lease is still valid, the rules of the lease still apply. I wanted to ensure that our landlords were aware of this issue and how it can have the potential to impact them. Our office has not been to NCAT for a good while now, so we do not expect that in our near future that we will have a huge need to do this either. The aim of the game will be to negotiate with people and ensure that we can come to some sort of compromise, whether that is through the NCAT system with their help, or if we keep things away from there all together. We will make decisions on a case by case basis to ensure that we are working in the best interest of our landlords at all times.
If you needed to chat about this situation, or have any questions, please do not hesitate to give Tina a call at the office on 63525125.
