Can the cost of attending Tribunal be recovered from losing party?

Discussion in 'Property Management' started by property_geek, 31st Jan, 2018.

Join Australia's most dynamic and respected property investment community
  1. property_geek

    property_geek Well-Known Member

    Joined:
    31st Jul, 2015
    Posts:
    239
    Location:
    Australia
    Scenario:
    Tenant disputed a deduction from the bond towards damaged door and applied to Tribunal.
    Property manager attended the hearing on owner's behalf. (charged @ $150 per hour)

    Tenant did not show up for hearing. Tribunal decided in owner's favour.

    Tenant now says she could not attend hearing due to unforeseen circumstances and will re-apply (or appeal to re-schedule) to tribunal. She still don't want to unfreeze the bond.


    As I have already incurred hefty cost of property manager attending the tribunal.
    If property manager has to again attend tribunal then the total cost would be more than the damage cost we are trying to recover from tenant.

    Property is in NSW.

    Question:
    Is it possible to recover the cost of attending tribunal from the tenant? If yes, how?
     
  2. thatbum

    thatbum Well-Known Member

    Joined:
    18th Jun, 2015
    Posts:
    5,788
    Location:
    Perth, WA
    Almost certainly not. I can't remember the wording in NCAT, but its something like exceptional circumstances for costs orders - and the above situation is a pretty standard one.

    Costs for representation is just something you have to factor in when deciding to dispute a matter.
     
  3. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

    Joined:
    18th Jun, 2015
    Posts:
    41,667
    Location:
    Australia wide
    You would need to get the tribunal to award you costs. I don't know if they have this power but even if they did it would be rare that they would award costs - your not legally represented either.
     
  4. D.T.

    D.T. Specialist Property Manager Business Member

    Joined:
    3rd Jun, 2015
    Posts:
    9,189
    Location:
    Adelaide and Gold Coast
    In SA no, although we've been campaigning for this hard. It has been granted once recently, copy of order here: https://lookaside.fbsbx.com/file/SACAT Fee Order 1.pdf?token=AWy05cTnpVsUdZyp-ENwGokhRSb45-S8a-SO3osXQ4Y988dZ_xVgcHmj4W6Gt7K47WQ9fa2pVh3KvKU2Nb39uwHIMxIkssMbn5MdtpF3ly82TKnDHeJFKS2cfJRB2rKvmGnSH8jeOyn-6OI-y_t-_82ZYjgjXo2CovPBNOVv9h9LgqMJqmu1cqhZBVz0v2Yo_qBcVD0o9Mk4_fGdrSOzVXaQ due to being a frivolous case so hopefully it sets precedent for being able to claim more readily.

    In the eastern states, they're more open to awarding tribunal costs.
     
    craigc likes this.
  5. D.T.

    D.T. Specialist Property Manager Business Member

    Joined:
    3rd Jun, 2015
    Posts:
    9,189
    Location:
    Adelaide and Gold Coast
    Also worth noting that when claiming LL insurance for evictions, they'll cover tribunal costs as part of that (check with your individual insurer).
     
    The Y-man and Terry_w like this.
  6. larrylarry

    larrylarry Well-Known Member

    Joined:
    18th Jun, 2015
    Posts:
    5,386
    Location:
    Sydney
  7. Scott No Mates

    Scott No Mates Well-Known Member

    Joined:
    18th Jun, 2015
    Posts:
    27,095
    Location:
    Sydney or NSW or Australia
    Would the pm not include those costs in the statement of claim submitted to the tribunal member on top of the loss of rent/damage claim?
     
  8. thatbum

    thatbum Well-Known Member

    Joined:
    18th Jun, 2015
    Posts:
    5,788
    Location:
    Perth, WA
    Legally you would not get away with this.
     
    Scott No Mates likes this.
  9. melbournian

    melbournian Well-Known Member

    Joined:
    2nd Sep, 2015
    Posts:
    3,038
    Location:
    melbourne
    hmm seems like is diff across the states

    upload_2018-1-31_16-38-59.png
     
  10. thatbum

    thatbum Well-Known Member

    Joined:
    18th Jun, 2015
    Posts:
    5,788
    Location:
    Perth, WA
    Probably not. Not sure where that info sheet is from, but its probably misleading.

    I'm pretty sure all residential tenancy jurisdictions are no-costs ones, with special circumstances required before an order for costs will even be considered. Wording for eligibility might be slightly different in each state, but the general rule is no costs orders.
     
  11. thatbum

    thatbum Well-Known Member

    Joined:
    18th Jun, 2015
    Posts:
    5,788
    Location:
    Perth, WA
    Did a quick search:

    in NSW

    CIVIL AND ADMINISTRATIVE TRIBUNAL ACT 2013 - SECT 60 Costs

    "(1) Each party to proceedings in the Tribunal is to pay the party's own costs.

    (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs."

    In Victoria

    Keeshan v Keeshan (Residential Tenancies) [2016] VCAT 376 (7 March 2016)

    At para 8

    "8. The starting point is that each party bears its own costs. An order for costs should only be made when the Tribunal considers it fair to do so, having taken into account each of the considerations in s.109(3) of the VCAT Act.[2] Each of those factors will be examined in turn by reference to the facts and circumstances as they apply to these proceedings."

    EDIT: Spoilers for the case. Costs order was not made, even though the substantive application was dismissed because it wasn't even a residential tenancy and therefore VCAT had no jurisdiction.
     
  12. larrylarry

    larrylarry Well-Known Member

    Joined:
    18th Jun, 2015
    Posts:
    5,386
    Location:
    Sydney
    NCAT doesn’t like lawyers representing their clients. Probably the same for VCAT and other tribunals.
     
    Terry_w likes this.
  13. TMNT

    TMNT Well-Known Member

    Joined:
    23rd Jul, 2015
    Posts:
    5,572
    Location:
    Melbourne
    Why? Cos if they make mother usual tenant biased decisions. They will get challenged or look silly?
     
  14. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

    Joined:
    18th Jun, 2015
    Posts:
    41,667
    Location:
    Australia wide
    Because it is not a court and lawyers increase costs.
     
    larrylarry likes this.
  15. TMNT

    TMNT Well-Known Member

    Joined:
    23rd Jul, 2015
    Posts:
    5,572
    Location:
    Melbourne
    Well theyre not paying for it so why would it be any of their concern
     
  16. larrylarry

    larrylarry Well-Known Member

    Joined:
    18th Jun, 2015
    Posts:
    5,386
    Location:
    Sydney
    That’s the aim of setting up a super tribunal... to keep costs low and keep lawyers out.
     
  17. Ted Varrick

    Ted Varrick Well-Known Member

    Joined:
    21st Jun, 2015
    Posts:
    1,941
    Location:
    No Mans Land
    Tom Rivera likes this.