Tribunals don't have jurisdiction over interstate landlords

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.

 

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.

 

I think this is the issue.

 

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?

 

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.

 

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

 

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 ??

 

Received this letter today for an application I lodged yesterday

 

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?

 

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.

 

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

 

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!

 

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.

 

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.

 

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.

 

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

 

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.

 

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)