NCAT Applications And The Office Of Fair Trading

The law has developed faster, cheaper and quicker ways of resolving disputes, rather than going to Court. The NSW Government has established the Office of  Fair Trading (formerly the Department of Fair Trading) and the NSW Civil and Administrative Tribunal  ("NCAT") formerly known as the Consumer, Trader and Tenancy Tribunal.  These give a cheaper alternative to consumers and traders, tenants and landlords, and builders and home owners.

The role of NSW Fair Trading is to safeguard consumer rights and to advise business and traders on fair ethical practice. This involves attempting to resolve disputes between:

  • consumers and traders, where a trader has breached the fair trading legislation;
  • the Owners' Corporations and owners in a strata scheme;
  • home owners and builders, where a builder has breached their obligation to provide a proper contract to the home owner, or to ensure that the appropriate insurance is in place, or to meet the standard of competence applicable for their work; and
  • residential tenants and landlords.

A complaint may be made to the Office of Fair Trading by any of these parties if they feel that the other party has breached their legal obligations. The Office of Fair Trading will try to resolve the dispute and may issue a verbal warning, formal caution or penalty notice, or in severe cases, prosecute the party for breach of the relevant legislation.

If a party to a complaint is dissatisfied with NSW Fair Trading's actions to resolve the dispute, that party may then make an application to NCAT which can hear disputes on a wide range of issues.

NCAT will attempt to resolve the dispute by appointing a conciliator who will try to negotiate a settlement that pleases both parties. If this fails, a Tribunal Member will decide the case and make a binding order, which can include a "money order". This is an order that requires a party to pay a sum of money to the other party. If the money order is not complied with, it can be registered and made a judgment of the Court and enforced through the Sheriff's Office. In residential building disputes, NCAT may also make a rectification order, requiring the builder to make good on the defects to the work.

NCAT will also adjudicate on disputes between strata owners and owner's corporations. The adjudicator appointed by NCAT may make the following orders:

  • orders about property (e.g. to get consent for repairs to common property, to require Owners' Corporations to dispose of personal property or use of common property)
  • orders about insurance (e.g. to require person to take out insurance or make an insurance claim, or to be exempted from being required to insure a building)
  • appointing a strata managing agent
  • orders about levy contributions (e.g. to prevent an Owners' Corporation from charging interest for late payment of a levy contribution or to alter the amount or manner of payment of levy contributions)
  • orders about keeping of animals (e.g. to require removal of an animal wrongly kept in a unit or because it creates a nuisance or hazard, to stop a nuisance or hazard caused by an animal, or to allow a person to keep an animal)
  • orders about meetings and the decisions of Owners' Corporations (to vary the time an annual general meeting is to be held, or to invalidate a resolution)
  • orders about the records kept by Owners' Corporations (to allow strata managers to enter information on the strata roll, or to require documents for inspection)
  • orders to make, amend or repeal a by-law, or to invalidate a by-law)
  • orders about covenants and other restrictions
  • orders about adjoining strata schemes (to resolve a dispute between neighbouring strata schemes)
  • general orders for settlement of disputes (e.g. management of administrative and sinking funds, holding meetings, repairs to common property, compliance with by-laws, or causing a nuisance or hazard, interference with use or enjoyment of common property)

Somerville Legal are experienced at assisting clients involved in complaints made to the Office of Fair Trading or NCAT. We give sound advice, to achieve the best practical results.

Please contact Andrew Somerville.

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