On 1 January 2014, the NSW Civil and Administrative Tribunal (NCAT) replaces the Consumer, Trader and Tenancy Tribunal (CTTT).
The NSW Civil and Administrative Tribunal has a very important role in the termination process. If you remain in the premises after the date for termination in a termination notice, and your landlord wants the tenancy to end, they will have to apply to the Tribunal for orders (they cannot apply elsewhere, such as a court – they must go to the Tribunal (Residential Tenancies Act 2010) (NSW) RT Act 2010) section 119)). The Tribunal also deals with termination proceedings without notice (for example, termination because of undue hardship) and can, in special circumstances, order that a tenancy be vested in a mortgagee that has become entitled to possession of the premises. Finally, the Tribunal can decide whether a landlord’s termination proceedings should be dismissed because the proceedings are retaliatory, or because of a defect in the proceedings. It’s the Tribunal that has the final say on whether and when your tenancy ends.
If your landlord applies to the Tribunal for termination, the Tribunal will send you a notice of hearing. The notice should also include a copy of the landlord’s application. If you receive a notice of hearing, make sure you attend – if you don’t, the Tribunal won’t hear your side of the story and will likely make the orders sought by your landlord. See the section NSW Civil and Administrative Tribunal for more about the Tribunal, its procedures and how best to prepare.
When it makes a termination order, the Tribunal will also make an order (a ‘possession order’) setting a date by which you must move out of the premises. In setting the date for possession, the Tribunal may consider the relative hardship of you and the landlord (section 114(1)). The Tribunal may also order you to pay an occupation fee while you remain in possession of the premises (in practice, the fee is invariably equivalent to the rent).
If your landlord starts termination proceedings in response to your own application to the Tribunal (for example, for orders that repairs be done) or any other action to enforce your legal rights, the Tribunal may find that the proceedings are retaliatory and decline to terminate your tenancy (section 115(2)). It can do this on your own application (section 115(1)) or, alternatively, in the course of determining your landlord’s application for termination. Your own application must be made within 30 days of receiving the termination notice (if it’s a termination notice without grounds; otherwise, you must apply within 14 days (Residential Tenancies Regulation 2010, clause 22(4)).
You will need to show evidence that you had taken, or proposed to take, action to enforce your legal rights, or that there is an order of the Tribunal in place between you and the landlord. (This is another good reason for always putting your communications with your landlord in writing.)
Think about going on the front foot and apply for a declaration that your landlord’s termination notice is retaliatory, rather than waiting for a hearing on your landlord’s application. You may be more likely to convince the Tribunal of your case – and even if you don’t succeed, you will at least get the rest of the notice period to prepare to move out.
This is changed.
Under the Residential Tenancies Act 1987 (RT Act 1987), you could not go on the front foot and apply for a declaration that the termination proceedings are retaliatory – you had to wait for the hearing on your landlord’s termination application to make the argument.
Defective notices and proceedings
If there’s a dispute about the validity of a termination notice (for example, the amount of notice is wrong, or the ground for the notice does not in fact exist), you can apply to the Tribunal for a declaration as to whether or not the notice was given in accordance with the RT Act 2010 (section 111(1) and (2)). (Your landlord can do this, too.)
Note that the Tribunal can decline to make the declaration, even if there is technically a defect in the notice. Note also that, strictly speaking, a section 111 declaration does not prevent the person who gave the invalid notice from using it as the basis for a termination application; however, if this happens, you would have a strong argument that the question of the notice’s validity has already been decided by the Tribunal and should not be revisited, and that the application should be dismissed.
Alternatively, you can raise arguments about the validity of a notice later, when the Tribunal is hearing your landlord’s application for termination based on the notice. (On the other hand, if you are the one who gave the termination notice, and you’ve moved out on that basis, your landlord can raise arguments about the validity of the notice by applying for compensation – that is, you breached the agreement by moving out without giving a proper notice.)
This is changed.
Under the RT Act 1987, you could not apply for declarations about termination notices before any termination proceedings based on the notice.
The Tribunal is allowed to overlook defects in termination notices if it thinks that it is appropriate to do so in the circumstances of the case, and that the person who received the notice was not disadvantaged by the defect (section 113). Similarly, where there is a defect or ‘irregularity’ in an application to the Tribunal, the Tribunal can amend the application to correct the irregularity, provided the Tribunal considers it necessary in the interests of justice and the other party to the proceedings is notified of the amendment.