Monday, January 13, 2014

NCAT begins - new fees, new time limits

As the new year began, so did the new 'super-tribunal' – the NSW Civil and Administrative Tribunal (NCAT). Tenants and landlords should find that it is mostly the same as the old Consumer, Trader and Tenancy Tribunal. Mostly....

New fee for NCAT appeals

Some key differences. If you think the Tribunal's got a decision wrong, you no longer apply for a 'rehearing'; instead, you can make an appeal to the Tribunal's Appeal Panel. Appeals on questions of law must be heard; for appeals on other grounds, you'll need to convince the Tribunal that you've suffered a substantial miscarriage of justice, either because the decision is not fair and equitable; or it's against the weight of evidence; or there's evidence available now that was not reasonably available at the hearing. These factors are familiar from rehearings in the old CTTT.

Less familiar is the fee for appeals – $317 – which is about an eight-fold increase on the CTTT's fee for rehearings. (Before NCAT commenced, the TU suggested, unsuccessfully, that the fee for appeals in residential proceedings should be the same as the fee for applications: $38).

Alternatively, if you think the Tribunal got it wrong specifically because you weren't there to put your case, you can apply for the decision to be set aside or varied. The fee for this application is $78.

If either fee is too much for you, consider asking the Tribunal Registrar to waive the fee – you'll have to show that there are 'special reasons' for doing so.

The time limit for making an appeal is 14 days from the date of the decision, or the date of your receiving a written statement of reasons for the decision. The time limit for applying for a decision to be set aside or varied is seven days from the date of the decision.   

Time limits for other sorts of applications to NCAT mostly remain the same, because most time limits are specified in the Residential Tenancies Act or Regulation. However, for applications without a specified time limit, NCAT sets its own: 28 days from when you became entitled to make the application. These applications include applications by occupants to be recognised as a tenant, applications for rent reductions because facilitiers have been withdrawn, and applications for declarations as to whether the Residential Tenancies Act applies to an agreement.

We think imposing a 28-day time limit on these applications could lead to some unreasonable or harsh results, so will be recommending to NSW Fair Trading to specify more reasonable time limits. Until then, make sure you when you make one of these applications that you ask the Tribunal for an extension of time if you're outside the 28 days.

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