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28 March 2019
By Peter Moran,
Colin Biggers & Paisley
The NSW Civil and Administrative Tribunal (NCAT) is one of the main forums for resolving disputes relating to real estate matters. Whether it’s a dispute about sales commission or a residential tenancies complaint, many agents will find themselves before NCAT at some point in their careers.
But it can be intimidating. That’s why it’s important to know the basics about NCAT and how it operates.
A quick overview
NCAT is a specialist tribunal service that oversees a wide range of legal matters, including tenancy issues, building works, decisions on guardianship and administrative reviews of government decisions.
It has four divisions:
Administrative and Equal Opportunity Division
Consumer and Commercial Division
Tribunal members conduct hearings and make determinations in relation to disputes, and decisions are legally binding. NCAT’s procedures are significantly less formal than those of a court and much cheaper.
After someone has made an application to NCAT, the agent (respondent) will be issued a Notice of Hearing, usually within 14 days. In most cases, the first hearing will be held within 10 to 28 days from the date of lodgement of the application.
The length of the hearing will depend on a number of factors including:
Complexity of the matter
Number of witnesses
Whether the matter is resolved at the conciliation stage
Whether the hearing will be adjourned
Amount of paperwork or number of issues involved.
NCAT conducts hearings throughout NSW. Hearings will usually occur at the venue closest to the place of dispute. For example, a tenancy matter will usually be heard at the venue closest to the rental premises.
NCAT’s purpose is to provide a low cost and accessible platform to resolve disputes and is designed for people to represent themselves without the need for lawyers. Therefore, there’s no entitlement at NCAT to legal representation, although it can be permitted in special circumstances on application being made.
Types of disputes
Disputes of this kind commonly arise when a seller disputes that an agent was the cause of the sale to avoid having to pay a commission. NCAT has jurisdiction to make legally binding decisions about agent commissions and fees under the
Property, Stock and Business Agents Act 2002
Consumer claims are complaints about a company or business that provides goods or services and NCAT has jurisdiction to determine applications up to the value of $40,000. Some examples include building disputes and the sale of faulty goods.
NCAT has jurisdiction to make legally binding decisions about tenancy disputes under the
Residential Tenancies Act 2010
and can hear matters where an amount of no more than $15,000 (or up to $30,000 in the case of a rental bond) is in dispute. There are a variety of types of tenancy disputes, including (but not limited to) bonds, rent (increases and non-payment), repairs and dissolution of tenancy agreements.
Preparing for a hearing
Gather your evidence
Collect all documents and materials related to the matter that you plan to use as evidence in support of your case. Ensure your evidence is separated and easy to locate during the hearing.
Identify key issues
List all the key issues that are important to the matter. This will ensure your case is organised and will help you express your key issues to the Tribunal member.
It’s important that you practise presenting your evidence. During the hearing you need to stick to the facts and present a succinct case. Practise in front of your colleagues to ensure your arguments can be understood.
Presenting your case
Before the hearing
You’ll receive a Notice of Conciliation and Hearing, which sets out the time and location for your hearing. On the day of the hearing, arrive 15 minutes early to ensure you have enough time to go through security, locate the room where your case is being heard and find a seat. Wait for your name to be called.
During the hearing
When addressing the Tribunal Member, always refer to them by using “Mr” or “Ms” and their surname. The person who has made the application should sit on the left and the respondent should sit on the right. Ensure you are polite to all people present, including the applicant. If you need to ask a Tribunal Member to postpone the hearing to another date, you must ensure you have a good reason and supporting evidence (for example, a medical certificate). This process is referred to as an adjournment.
The Tribunal Member will most likely request that you speak to the other party to see if an agreement can be reached. If an agreement is reached with the other party before or during the hearing, you should advise the Tribunal Member and they will be able to make orders to record the agreement. It’s important to have orders made, as if the other party doesn’t comply with them you can then seek enforcement. If an agreement can’t be reached, you will have a hearing either on the day or at a later date as directed by the Tribunal Member.
The hearing provides both parties with the opportunity to present their case and convince the Tribunal Member of what orders should be made and why. It’s important to stick to the facts and evidence, as the Tribunal Member will only be interested in these when making an order. The applicant will be asked to give evidence first and the Tribunal Member may ask questions. Once the applicant has given evidence, the respondent has the opportunity to ask questions of the applicant in a process call cross-examination. The respondent will then be able to give evidence and the Tribunal Member may ask questions. The applicant then has the opportunity to cross-examine the respondent.
After the hearing is completed, the Tribunal Member will then make a decision. A decision will generally be made on the day of the hearing, however they may also take a short break to consider the case before making a decision. If the matter is particularly complicated, the Tribunal Member may reserve their decision and deliver the decision at a later date.
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