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Beware of Time Limitations at the Civil and Administrative Tribunal (NCAT)

17/12/2019

The Civil and Administrative Tribunal (NCAT) is a Tribunal which deals with different types of applications, referred to it by various legislation. Cases which are brought before the Tribunal are subject to the provisions of the Civil and Administrative Tribunal Act 2013 (NCAT Act) and the Civil and Administrative Tribunal Rules 2014 (NCAT Rules). As with most claims that are heard, there are time limits in which you can bring a claim. There are many statutes which specify limitation periods.

When bringing an action before the NCAT be wary of time limitations. Time limitations restrict the time you have to lodge an application, often to a few weeks or months after the conflict first arises.  Ordinarily, the clock starts ticking as soon as the Applicant (the party who wishes to initiate proceedings) is entitled do so.

NCAT deals with many matters including those relating to the Home Building Act 1989 and Strata Titles. The rules regarding strata plans are governed by the Strata Schemes Management Act 2015, Strata Schemes Development Act 2013 and various regulations. Individual strata buildings are also governed by the by-laws of the strata.

For example, if you are a Lot Owner in a Strata Scheme you will need a special by-law approved by the Owners’ Corporation, to have exclusive use of any part of the common property. This may occur because you wish to make renovations to your lot, which affect the common property. Most often the question of what is common property is easily determined but it is not always clear whether works being undertaken include works to the common property.

You may have rights, if the Owners’ Corporation unreasonably rejects a proposed Motion for by-law and takes action which is unlawful.  For example the Owners Corporation may have rejected a Lot Owner’s application to undertake building works.

If you are seeking to overturn an unreasonable refusal of a request to the Owners Corporation, you become entitled to make an application to NCAT immediately after the Owners Corporation refuses your request. If you would like to appeal a decision of NCAT itself, you become entitled to lodge an appeal immediately after NCAT makes its Decision and Order. In both cases, the relevant limitation periods will begin on that date. .

In most cases, the statute which allows you to bring an action will specify the time limit which applies. However, what happens when the statute does not mention time limits at all?

The NCAT Rules provide that where the relevant legislation does not specify a time limit, applications must be made within 28 days from the day on which the Applicant becomes entitled to make the application.

This may seem harsh however NCAT’s guiding principle, set out in the NCAT Act, is to facilitate the ‘just, quick and cheap resolution’ to disputes. Imposing a time limit ensures parties (and potential parties to a dispute) are aware of the time limits and the need to take action within the time limits or risk losing the right to claim. It also provides greater certainty to all parties because there are restrictions on claims being brought against them outside the time limits.  A case will require evidence to be considered such as witness testimonies, site surveys and records as accurately as possible and the circumstances at the time of dispute. Therefore, the Tribunal generally enforces time limitations.

However, the NCAT Act allows the Tribunal to extend time limits, either by its own motion or after written application by a party. 

NCAT has allowed such extensions in exceptional cases, where it would not be unjust to grant an extension.

In assessing an application to extend time, the Tribunal will consider not only the need for efficiency, but also other relevant factors which include for example, the length of delay, the reason for the delay, the Applicant’s prospects of success and any prejudice caused to the other side.

Generally, the Applicant will need a sufficiently unexpected or uncontrollable reason for the delay, and appropriate evidence which satisfactorily proves their explanation. 

Additionally, the Tribunal’s duty to protect the interests of both parties, means that ‘the further away in time from the deadline, the weaker a claim to an extension of time becomes’ as it would be unjust and costly to the other party to indefinitely prolong proceedings.

Where the Applicant does not produce evidence to support their claims, or if they were merely forgetful or unaware of the time limit, NCAT is more likely to not grant an extension of time to allow the proceedings to be commenced.

Given the difficulty and costs associated with a successful application for an extension of time, it is best practice to seek legal advice and be mindful of time limitations as soon as you become aware of a possible dispute.  If you are faced with a dispute, please contact Richard Watson Accredited Specialist or Shereen Da Gloria his Personal Assistant to discuss your concerns and seek timely advice.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 9221 6011.

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