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Surprising case poses 'expensive' issue for property investors

Surprising case poses 'expensive' issue for property investors

by Sasha Karen | February 12, 2019 | 1 minute read

The conclusion of a recent case found that the NSW tribunal is not considered a court, which has the head of an industry body worried for property owners and investors interstate. 

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February 12, 2019

A recent decision by the NSW Court of Appeal determined the NSW Civil and Administrative Tribunal (NCAT) is not a court and cannot be used to determine cases when at least one party is in another state.

According to Tim McKibbin, CEO of the Real Estate Institute of NSW, this is an issue that needs to be prioritised for property investors. 

“Currently, parties requiring dispute resolution, and a court to do so, need to manoeuvre through a number of convoluted processes to get their matter out of NCAT and into the local court [or] district court,” Mr McKibbin said.

“This procedure is both cumbersome and expensive. Accordingly, parties elect not to pursue their legal rights because the costs make it prohibitive. Clearly, that is unsatisfactory and required urgent attention, in fact it needed urgent attention well before April 2018.

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“So, what’s the government’s response been to date? Irresponsibly, they have done absolutely nothing with the expectation of just hoping the problem will go away – hope is not a strategy.”

How can this be fixed?

In order to address the issue, Mr McKibbin used Queensland legislation as an example, which includes in the Queensland Civil and Administrative Tribunal Act 2009 that in section 164 (1), “[t]he tribunal is a court of record”.

“The status of QCAT as a court, and therefore Section 164 (1), was tested in a case that went to the Queensland Court of Appeal and was upheld,” Mr McKibbin said.

“So what does the New South Wales government need to do? Simply clip and paste Section 164 (1) into the NCAT legislation, problem solved – it’s that easy. What are they doing? They are continuing their earlier strategy of just hoping it will go away – let’s be crystal clear, it won’t.

“REINSW is calling on the Premier to direct Minister Kean and the Attorney General to prioritise this matter, the resolution is simple and should be implemented immediately,” Mr McKibbin said.

The decision made that determined NCAT cannot be considered a court is in line with a previous ruling in NSW back in April 2018.

For now, Mr McKibbin said that this decision made clear that NCAT cannot make any determination when the status of a court is needed.

“NCAT is a judicial forum within which parties to a dispute can have their matter heard and determined competently, and due to its process, efficiently and cost-effectively,” he said.

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