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NCAT: Obedience To the Unenforceable

According to a recent decision of the NSW Court of Appeal, the rights and obligations of tenants and landlords may be unenforceable where one of the parties live interstate.

This comes down to the fact that the NSW Civil and Administrative Tribunal is fully a part of the executive branch of the NSW Government, and therefore it seems that it may have no authority, or jurisdictions, on those parties who are outside of NSW.

NCAT is different from the quasi-judicial tribunals that exist in other states, such as Queensland’s Civil and Administrative Tribunal (QCAT), which is still part of the judicial branch (‘a court of State’) and therefore can exercise jurisdiction.

The case, Burns v Corbett; Gaynor v Burns (which you can read here if you’re interested), was not a residential tenancy case at all. Heard in February, the case at the center of the controversy is actually in the Anti-Discrimination and Equal Opportunity Complaints Division of the NCAT. Yet, the decision holds significant ramifications for tenants seeking to enforce rights and obligations against landlords; and also for interstate landlords seeking orders against tenants in NSW.

The consequence of the decision seems to undermine the purpose of NCAT which was to provide a simple, quick and effective process for resolving disputes and reviewing executive action. Instead, in the case of interstate landlords, the NCAT may be withholding resolution or forcing parties to participate in the expense, delay and ineffectiveness of commercial litigation for breach of contract in a court proper.

It would be only the rarest of tenancy disputes, whereby the quantum of compensation amounts would justify paying lawyers, court fees and taking on the risk and delays of litigation.

It is anticipated that the Court of Appeal decision may proceed to the High Court of Australia for review later this year, as special leave has been granted to appeal.

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Sarah Bell

With a background in research and investigations, Sarah Bell married into the real estate industry in 2009 and has found a passion for both the business and its people.