NCAT has jurisdiction to deal with disputes where a party temporarily moves outside of New South Wales

On 17 December 2020, the Appeal Panel of the Civil and Administrative Tribunal
New South Wales (‘NCAT’) handed down their decision in Anagnostou v Leo [2020] NSWCATAP 272.

Key Points:

  • The decision confirms that NCAT has jurisdiction to deal with disputes where a party temporarily relocates outside of New South Wales. This is notwithstanding that NCAT lacks jurisdiction to deal with disputes arising between residents of different states.
  • The decision clarifies NCAT’s jurisdiction and removes barriers to relief where landlords and/or tenants temporarily relocate to another state including to obtain alternative employment and/or accommodation due to COVID-19
Background
The appellant, Ms Anagnostou and the respondent, Ms Leo were parties to a residential tenancy agreement under the Residential Tenancies Act 2010 (NSW) (‘Agreement’).
 
In November 2020, the appellant filed an application with NCAT, alleging that the respondent was in breach of the Agreement. At the time of the application, the appellant was living in Victoria having travelled there earlier in 2020. The appellant moved to Victoria temporarily to work for a year, but lost her job due to COVID-19. She continued to live in premises in Victoria provided by her employer with the intention of returning to NSW sometime in late 2020.
First Instance Decision
At first instance, NCAT refused to deal with the application on the basis that it fell outside of its jurisdiction given that the parties were “residents of different states”.
 
The appellant appealed to NCAT’s Appeal Panel.
Notice of Appeal
The appellant lodged a Notice of Appeal contending that she was not a resident of Victoria and NCAT had jurisdiction to deal with the dispute.
Jurisdiction to deal with disputes between residents of different states
Sections 75 and 76 of the Constitution states that the High Court of Australia as well as certain Federal Courts and State Courts have jurisdiction to deal with disputes “between residents of different states”.
 
In Burns v Corbett [2018] HCA 15 (‘Burns v Corbett’) the High Court of Australia determined that sections 75 and 76 preclude a State Tribunal such as NCAT from dealing with the matters set out in those provisions.
Appeal Panel Decision
The Appeal Panel upheld the appeal.
 
The Appeal Panel confirmed that NCAT does not have jurisdiction to deal with disputes “between residents of different states” based on the terms of sections 75 and 76 of the Constitution as well as the decision in Burns v Corbett.
 
Accordingly, the Appeal Panel referred to the decisions in Australasian Temperance & General Mutual Life Assurance Society Ltd v Howe (1922) 31 CLR 290 and R v Oregan; Ex Parte Oregan (1957) 97 CLR 323 to determine the meaning of the expression “residents of different states”. The Appeal Panel found that this was relevant to determine whether the appellant’s relocation rendered her a resident of Victoria rather than New South Wales.
 
Ultimately, the Appeal Panel determined that the expression referred to a person who resides ‘permanently’ in a state.
 
The Appeal Panel found that the appellant resided permanently in New South Wales, having lived and worked there for over 30 years. The Appeal Panel also found that appellant had only moved to Victoria temporarily, perhaps by the force of COVID-19, and intended to return to New South Wales.
 
On this basis, the Appeal Panel determined that NCAT did have jurisdiction to deal with the dispute.

Contact Hicksons’ Commercial Dispute Resolution team for further information or advice on these issues.

Post by Chloe Ellis, Senior Associate, and Daphne Zhou, Graduate.

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