The Real Estate Institute of NSW has raised concerns regarding NSW Civil and Administrative Tribunal's inability to hear cases if one or more parties live interstate.
In February 2019, the NSW Court of Appeal held that the NSW Civil and Administrative Tribunal (NCAT) is not a court and therefore cannot hear cases where one or both parties live in another state.
This is because NCAT cannot exercise jurisdiction to determine matters with respect to interstate residents.
This does not affect parties that may reside overseas or in territories (ACT or NT), or corporations (being landlords or tenants) registered interstate, a conclusion conferred from the Constitution’s reference to the jurisdiction of matters between residents living in different states.
REINSW CEO Tim McKibbin said the decision created a climate of confusion for agents, landlords and tenants.
“NCAT is a judicial forum within which parties to a dispute can have their matters heard and determined competently, and due to its processes, efficiently and cost effectively,” he said.
“As of this decision, parties requiring dispute resolution must manoeuvre through the processes of the Local Court, which, in comparison to NCAT, are complex and expensive.”
Can you still represent your client?
In cases heard before NCAT, an agent can represent their client.
However, if the jurisdiction issue forces a case into the Local Court, it becomes more complicated
In most cases, in court, a client is represented by themselves or a solicitor.
It appears that it may be possible to seek permission from the court for a non-legal representative (e.g. a property manager) to represent them.
REINSW said it has received confirmation that parties can only be represented by solicitors in the Local Court, but is also aware of a section in the Summons (being, a court document) where the client appears to be able to seek leave for their property manager to represent them as their non-legal representative.
According to the Summons, whether the property manager can represent their client in the Local Court is a general discretionary power conferred to the Court, and the application may or may not be rejected upon assessment.
Where does responsibility lie?
Mr McKibbin said REINSW and the Property Management Chapter Committee have raised concerns regarding NCAT’s inability to hear cases if one or more parties lives interstate.
“REINSW has sought counsel on this issue and has received conflicting advice, making it hard for agents to know what to do in these circumstances,” he said.
“However, in regards to what we do know, the current process of going to Local Court is both cumbersome and expensive for agents, landlords and tenants.
"And this is why NCAT was established."
Source: REINSW
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