In the event of a dispute, you and the proprietor are required to try to resolve it using a reasonable dispute resolution process (occupancy principle 11, Schedule 1 of the Boarding Houses Act 2012 (the BH Act)). If it is a minor problem, try to resolve it informally. If that doesn’t work, or if it is a serious or urgent problem, you can apply to the NSW Civil and Administrative Tribunal to resolve the dispute.
If the dispute is about something that is covered by an occupancy principle, it is called an ‘occupancy principles dispute’ and you (or the proprietor) can apply to the Tribunal to have it resolved (section 32). Examples of ‘occupancy principles disputes’ would include:
- You claim that a term of your occupancy agreement is inconsistent with the occupancy principles;
- You claim that the premises are not in a reasonable state of repair (occupancy principle 1);
- You claim that a termination notice given by the proprietor is inconsistent with the occupancy principles (occupancy principles 9 and 10);
- The proprietor claims that you have prevented their access to the premises (occupancy principle 5).
The Tribunal can make a wide range of orders to resolve an occupancy principles dispute (section 32(4)), including:
- An order that restrains any action in contravention of the occupancy principles;
- An order that requires an action in performance of the occupancy principles;
- An order as to compensation; and
- An order that requires payment of part or all of an occupancy fee to the Tribunal until the whole or part of the occupancy agreement has been performed or any application for compensation has been determined.
If the dispute is about whether you or the proprietor is in breach of a term of an occupancy agreement to which an occupancy principle does not apply (for example, the term that requires you to pay an occupation fee, or a term that states that you will be provided with meals), it appears that the dispute is not an occupancy principles dispute, and cannot be dealt with by the Tribunal under section 32. However, you may be able to apply to the Tribunal to have a breach by the proprietor dealt with as a consumer claim under the Fair Trading Act 1987 (NSW) (Part 6A), which provides for a similarly wide range of orders. (Note that a proprietor cannot make a consumer claim under the Fair Trading Act 1987 (NSW), because they are not the ‘consumer’ in the relationship.)