Tribunals don't have jurisdiction over interstate landlords

Discussion in 'Property Management' started by D.T., 19th Jul, 2018.

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  1. D.T.

    D.T. Specialist Property Manager Business Member

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    Hi guys

    Just a "gotcha" thats currently going on in the industry.

    The various state tribunals (SACAT, NCAT, etc) are unable to hear cases where a landlord lives interstate, even if you're using a local agent to manage the property.

    This went all the way to the High Court - Case S183/2017 - High Court of Australia - and as a result Tribunals are / were turning away such cases or redirecting them to Magistrates Court instead.

    The latest from REISA in SA (not sure on progress in other states) is that they appealed this and were denied, so instead are employing a magistrates qualified judge to sit at SACAT offices to do these cases so that property managers can still apply/lodge these cases in the same way as before. This is a decent outcome given the crappy situation, but the issue might be that there's a backlog of cases still in the pipeline from when there was a pause on them whilst they were figuring it all out.

    It will be interesting to see whether cases heard by the judge (vs by the normal tribunal members) are treated equally and have similar outcomes, especially for us with such a high percentage of interstate clientele.
     
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  2. Simon Hampel

    Simon Hampel Founder Staff Member

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    Surely this is something that will need to be fixed with legislation?
     
  3. Lil Skater

    Lil Skater Well-Known Member Business Member

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    You’d think it would be that simple.

    I haven’t heard of anyone getting caught with this at VCAT, but also haven’t received anything about doing a review of the legislation surrounding VCAT jurisdiction.
     
  4. Simon Hampel

    Simon Hampel Founder Staff Member

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    I guess the issue is that tenancy law is state based?
     
  5. Perthguy

    Perthguy Well-Known Member

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    I think this is the issue.
     
  6. HUGH72

    HUGH72 Well-Known Member

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    One of my PMs in NSW represented me only last week and I’m in Qld so it must only be the case in some states possibly?
     
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  7. thatbum

    thatbum Well-Known Member

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    I had a skim over the decision. Actually, the problem is that state tribunals aren't "state courts" and because of the federal constitution, can't deal with interstate parties.

    Its not just a tenancy thing.

    Its not an easy legislative fix either, from what I can tell.
     
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  8. Tom Rivera

    Tom Rivera Property Manager Business Member

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    Interesting- I've represented many clients who are interstate at QCAT and it's never even been mentioned.
     
  9. Paul@PFI

    [email protected] Tax Accounting + SMSF Business Plus Member

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    Have a company act as the party to the lease rather than the owner ? I am not aware of a state law that compels a lease to be in the name of the property owner since standards leases say "or agent". Commonwealth laws then apply and the company can exist where ever it wishes ?

    If someone says the Registered office is interstate and so its not a valid party you may have a situation to use and abuse. So the tenant cant seek action in a tribunal v's a out of state landlord. Bargain. Give all tenants 30 days to get out. No penalty ? Force them onto a new lease instead - with agent named ?

    Surely this cant be the case...Damned High Court make some stupid decisions sometimes. Last great one was ällegince v's MPs. Someone born here can be a dual citizen and never know it and may even be unable to change it.

    Not a bad job for 572K a year...And you only have to sit how many days ??
     
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  10. D.T.

    D.T. Specialist Property Manager Business Member

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    Received this letter today for an application I lodged yesterday

    upload_2018-7-20_15-13-52.png
     
  11. Lil Skater

    Lil Skater Well-Known Member Business Member

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    I've never had issues either @Tom Rivera - but the high court decision only came out recently. I don't know how it's only just cropped up now?
     
  12. D.T.

    D.T. Specialist Property Manager Business Member

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    I think because they spent a lot of time waiting for appeal etc to go through and figuring out what to do. It sounds like each state will handle/fix it their own way.
     
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  13. Propertunity

    Propertunity Exclusive Real Estate Buyers Agent Business Member

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    I wonder how many tenants (who know how to work the system) may apply to have their ruling set aside based on this?
     
  14. Lil Skater

    Lil Skater Well-Known Member Business Member

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    I am hopeful it doesn't make its way onto the news for that very reason. Surely there will be some drop kicks that want money back because of it!
     
  15. Ray White Marsden

    Ray White Marsden Logan Property Specialist Business Member

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    Wow.... this is very interesting being in QLD myself over the last 9 years i have never had this issue lets hope it doesn't spread up this way.
     
  16. thatbum

    thatbum Well-Known Member

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    I always moan about WA having the most backwards tenancy jurisdiction because we don't use a tribunal.

    Well turns out that's one less issue we have to worry about here.
     
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  17. thatbum

    thatbum Well-Known Member

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    I'm not sure whether a company helps with the situation actually. Off the top of my head, I suspect an interstate company would have the same problem as an interstate natural landlord.

    However the legal effect isn't quite what you describe - its not that the lease or any tenancy laws are actually affected - its just that it needs to go to a different court than the tribunal - most likely the court that has the equivalent civil jurisdiction for contracts generally. SA seems to be trying a work-around where a Magistrate rocks up to the SACAT premises and everything else is pretty much the same.
     
  18. Perthguy

    Perthguy Well-Known Member

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    Someone took it to the Supreme Court and won. This is the fall out of that decision.
     
  19. Lil Skater

    Lil Skater Well-Known Member Business Member

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    Well, yes I understand that. What I don’t quite get is that VCAT was formed in 1998 - I don’t know about the other CAT’s, but it seems odd it came to be challenged 20 years after the tribunal was formed.
     
  20. Perthguy

    Perthguy Well-Known Member

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    It takes someone who wants to fight and has the money to fight.

    I live in Perth and had a bodgy tenant in Melbourne. I took them to VCAT. I never questioned if VCAT if jurisdiction to hear my case. Very few people would. And if they did, most people can't afford to take a case like that to the Supreme Court.

    Actually, the case was extraordinary. It really is a must read. Starts getting interesting at paragraph 6.

    Burns v Corbett; Burns v Gaynor; Attorney General for New South Wales v Burns; Attorney General for New South Wales v Burns; New South Wales v Burns [2018] HCA 15 (18 April 2018)