Preparing for a tribunal: What you need to know

17 November 2021

COVID-19 hasn’t been easy on property managers, and some may have found themselves heading to the NSW Civil & Administrative Tribunal (NCAT) more frequently than they did pre-pandemic.

With people’s homes and financial livelihoods on the line it’s never an easy process, but the path can be made smoother through careful preparation, according to REINSW Property Management Chapter Committee Member, Tiana Mueller.

“In the last 12 to 18 months I think a lot of agents have experienced attending tribunal more often. It has had a lot to do with rent arrears and COVID, particularly around issues with bonds and tenant vacates. It seems a lot of people are more financially stressed and no longer want to pay for cleaning, for example,” said Ms Mueller, who is a Director at MMJ Real Estate.

“So now more of us are ending up at tribunal because tenants just don't want to let their bond go, even if it’s for just a few hundred dollars,” she said, adding that a lack of sufficient tribunal preparation is the cause of some property managers becoming unstuck.

“Not a lot of people out there do enough significant tribunal training. It's a topic that everyone tends to avoid, probably thinking ‘If I don't know about it, hopefully it just won't happen’. But you are obligated to do everything you can and present the best case for your landlord.

Long before heading to tribunal, Ms Mueller said savvy property managers and their teams should arm themselves with the answers to some key questions.

Where do I start with the documentation for the hearing?

With cases now being heard via Zoom or over the phone, it’s more important than ever for property managers to prepare their paperwork.

“It really comes down to your documents, but a lot of agents tend to think they can just rely on what they say and forget that at tribunal it’s all about evidence. If you don't have evidence to back up your arguments, then you may as well not say them,” she said.

A successful outcome for your landlord at tribunal, said Ms Mueller, comes down to getting your ducks in a row from day one.

“It starts at the very beginning. If you've got a situation where things are feeling a little bit off, and you have an inkling you could end up at tribunal, then start documenting absolutely everything and build your tribunal paperwork as if you’ll be going - even if you don’t end up there,” she advised.

“A lot of people leave it to the last minute and then start to cram. It's often those documents that you actually need to rely on that you haven't put in,” she warned.

Agents should also remember that key documents need to have the right stamp of approval.

“I've had firsthand experience where a tribunal member said to me, it's not a statutory declaration so I’m throwing it out, as simple as that,” Ms Mueller said.

An NCAT member requires as much substantiating evidence as possible. Providing a professional report (and/or statutory declarations) from one or two professionals in the area of the claim will assist to support your claim; for example, a pest controller if it relates to vermin, or a mould inspector, etc.

You may provide a statutory declaration from a tradesperson who attended the property reflecting their professional opinion if it supports your stance.

How do I present my notes?

Organisation will also be your friend in the lead up to tribunal, and on the big day.

“It's a really good idea to label, tab and number pages you know you're going to refer to, which will also assist when you are in the hearing. When you're presenting you want to come across as very prepared and not rushing - because that will just make you flustered,” Ms Mueller said, adding that this ordered presentation will also be appreciated by the tribunal members receiving the documentation.

Also, when submitting the version to the tenant, Ms Mueller’s advice is that the copy of the Managing Agency Agreement would be excluded, with blank pages in its place, so that the final page numbering aligns for all versions.

“Know what your statements are going to be ahead of time. You might have five statements or arguments you want to make, so know exactly where the evidence is for those arguments and you'll feel more at ease on the day.”

For property managers to have all their key facts and figures at a glance, NCAT has a comprehensive Hearing Notes PDF available on its website that should also be handed in with the rest of the documentation for the member to review at the hearing.

“It's a good idea to have that filled out in front of you because everything you'll need to tell the tribunal member will be there:

  • When did the tenant last pay?
  • What is the daily occupation fee?
  • When is their paid-to date?
  • What is the tenant’s weekly rent?
  • How much is their bond?

These are the questions the member will ask and you need to have them ready to go instead of fumbling,” Ms Mueller said.

What etiquette is expected in a hearing?

If there is one thing an agent shouldn’t bring to an NCAT hearing, it’s emotion.

“Often when you end up at tribunal - whether you're the respondent or the applicant - you’ve already been through a long, exhausting process. It’s an emotional situation because we're dealing with people's properties and lives. I've sat down with so many property managers in my time and asked ‘What's your argument?’ And 50 per cent of their argument is emotion,” she said.

“I tell them straight away to cut that emotion out, stop calling people names, just stick to the facts.”

She said a lot of property managers can let nerves get in the way of etiquette.

“Always refer to the person running the hearing as ‘Member’ if you don’t catch, or forget, their surname. Don’t interrupt people when it’s their time to speak. I’ve been in so many hearings where tenants have dug holes for themselves due to a lack of respect for the other party and, at times, the Member,” she explained. 

Ultimately, Ms Mueller said practice makes perfect.

“I always recommend you bounce off a fellow property manager, or a colleague, and even try to have a dummy hearing in the office beforehand.” 

Ms Mueller added that if the hearing is to be conducted by phone, property managers can pre-prepare by ensuring that NCAT has the correct contact number for their office.

“If the tenant made the application, they may have given an incorrect phone number, which could leave you waiting for a call on a certain number while the member is calling another – without answer. In that case, you are considered a ‘no show' and the hearing heard without your representation,” she explained.

What happens after the hearing if a tenant fails to comply?

Even if things legally go your way at the hearing, it’s not always a done deal. Occasionally tenants fail to vacate or follow NCAT orders and although it’s never easy, Ms Mueller said the process will be simpler with solid pre-planning.

“Make sure your orders are correct and you double check them, even have a senior staff member check your paperwork. If you don't put the right orders in at the very beginning, then you could end up in a situation where the correct orders aren’t given when it matters. For example, applying for an arrears termination, but not also simultaneously applying for payment of the arrears,” she said.

“Basically, if the tenants fail to vacate and yesterday was their date to vacate, then apply for a warrant for possession through the online NCAT Warrant for Possession form,” Ms Mueller added.

She said upon requesting the warrant that property managers should expect that NCAT will email it to the Office of the Sheriff and notify each party. It is then up to the agent to contact the sheriff to arrange the tenant eviction. The warrant must be executed within 28 days from the date of issue and there is a request form plus a sheriff fee to execute the warrant.

Note, you only have 30 days from the termination date ordered by NCAT, in which to apply for the Warrant for Possession.

“It's a really nasty part of the job, and doesn't get easier over time, but at the end of the day I remind myself that the landlord pays me to do a job. I'm very good at working with my tenants to find the best solution without heading to NCAT, but that tenant had to pay their rent and if they haven’t then they’ve done the wrong thing,” she said.

Tribunal hearings, and potential physical evictions, are highly stressful but a necessary part of the job so Ms Mueller urged agents to reach out for support when needed.

“It's really good to talk it through and be reminded you're not a bad person, you’ve done what you had to do,” she said.

Tribunal checklist

To be fully prepared before heading to NCAT, consult the checklist below:

  • Ensure that you thoroughly read the NCAT notice of hearing, regarding hearing instructions. Is the NCAT Member initiating the hearing, or are  you expected to call/Zoom in, entering a reference number. Call prior to the hearing if you are unsure of the process.
  • Have your tribunal notes ready and at hand
  • Supply parties with the agent’s licence
  • Check that the Managing Agency Agreement is signed by both parties, dated and the landlord details match those on the Residential Tenancy Agreement
  • Have a copy of the Residential Tenancy Agreement ready
  • Provide a copy of the condition report, ensuring that the outgoing inspection section has been fully completed
  • Prepare any ingoing photos (if relevant to the hearing)
  • Prepare any vacating inspection photos (if relevant to the hearing)
  • Supply the rent ledger
  • Compile all relevant notices (eg. termination notice, rent increases etc.)
  • Gather any professional reports and a statutory declaration from professional service providers supporting your case (if relevant to the hearing)
  • Make bullet points to form the series of events in chronological order so that you have an easy-reference timeline
  • Supply supporting emails, diary notes, a record of telephone calls and other communications relevant to the hearing
  • Have your mobile phone next to you, both as a calculator and to contact your landlord if required.

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