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Difficulty enforcing leasing agreements with interstate and international landlords

A NSW Court of Appeal decision regarding the enforcement of anti-discrimination legislation has had the surprise effect of throwing doubt on the enforceability of tenancy agreements where the landlord does not reside in NSW.

The decision of Burns v Corbett; Gaynor v Burns [2017] NSWCA 3 involved the attempted enforcement of an order by the then NSW Administrative Decisions Tribunal (now the NSW Civil and Administrative Tribunal or NCAT) that Ms Corbett (a former federal candidate in Katter’s Australian Party) publically and privately apologise for remarks which Mr Burns, a Sydney-based anti-discrimination campaigner, alleged were discriminatory towards homosexuals. When Ms Corbett refused to do so, Mr Burns commenced proceedings in the Supreme Court for contempt of court.

In defence of the contempt charges, Ms Corbett claimed that as a Victorian citizen the NSW based tribunal did not have jurisdiction against her. The Court of Appeal agreed, finding that a State tribunal is not a “court of a State” and as such is not able to exercise judicial power to determine matters between residents of two states.

The decision has created concern as to NCAT’s ability to be used as a cheap and efficient pathway to resolving tenancy disputes. These fears appear to have been realised, with recent reports that Sydney-based renters were unable to seek compensation against their South Australian landlord. With NCAT no longer a viable means of resolution, such disputes can only be decided in the courts, along with the significant costs and delays associated with it. This bar to efficient dispute resolution not only affects renters seeking compensation but can equally prove a bar to landlords dealing with problematic tenants.

The NSW Attorney-General Mark Speakman has suggested that only a tiny fraction of matters dealt with by NCAT involve circumstances that may be affected by the decision and has indicated that  the State Government are currently investigating a way to resolve the problem. In the meantime, an appeal of the decision is to be heard by the High Court later in the year.

Alex Collie, Lawyer

Paul Carroll, Partner

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