Resolving Disputes

If attempts to communicate problems with your landlord fail then seek advice from Tenants Protection Association or Tenancy Services on how next to proceed. You may need to resolve the dispute through the Tenancy Tribunal.

Outline of Steps of an Action

1. All proceedings are commenced by the filing of an application for the Tenancy Tribunal at the Tenancy Services office on 153 Hereford St. Each application has a filing fee of $20.
2. The application is referred to a Tenancy Mediator who then attempts to bring the parties in a dispute to an agreed settlement. However, if either party refuses to have the matter considered by a Tenancy Mediator, it will proceed to a hearing before the Tribunal. Note that a matter may also be referred to a Tenancy Mediator by the Tribunal if during proceedings the Adjudicator is satisfied that the parties may be brought to an agreed settlement.
3. If, as a result of the mediation process, the parties reach an agreed settlement, the Tenancy Mediator may make an order to give effect to the settlement.
4. If an agreed settlement is not reached, the Tenancy Mediator will report accordingly to the Tenancy Officer who will then refer the matter for determination by the Tribunal.
5. The Tribunal procedure is less formal than in a Court. The Tribunal determines each dispute "according to the general principles of law relating to the matter and the substantial merits and justice of the case, but [it is] not bound to give effect to strict legal rights or obligations or to legal forms or technicalities". Although less formal, the decision is legally binding and therefore should still be taken seriously.
6. If the matter is to proceed to a hearing before the Tribunal, the parties will be notified as to the time, place and purpose of the hearing.
7. The matter will usually be resolved at the hearing before the Tribunal. However, in some situations, there may be a rehearing or the case may go on appeal to the District Court, High Court or Court of Appeal. Also, the Tribunal may state a case for the opinion of the High Court on any question as to the jurisdiction of the Tribunal or on any question of law arising in proceedings before it. However, subject to that opinion, the matter will still be resolved by the Tribunal.
8. The Tribunal�s decision and reasons for it are given in writing to both the parties together with written notice of the rights of appeal against the decision and any time limit on those rights.
9. If an order of the Tribunal is not complied with, it may be enforced through the officers of the District Court or, in the case of a work order, by further application to the Tribunal.

Tenancy Tribunal and Court Proceedings

Parties are advised, if possible, to watch one or two other cases in the Tribunal to get an idea of how the process works. Although it is a public Tribunal you will be asked by the Clerk if you are with either party or are a witness. State that you are an observer. You can then take a seat at the back of the room and watch the proceedings.

The Tribunal room is usually set up like a court room. The parties will be seated at separate tables facing the Adjudicator�s bench. When the Adjudicator enters the room, the parties, as a matter of courtesy, should stand and then sit down when the Adjudicator sits down.

The name of the case will be called. The parties will say who they are. The Adjudicator will then ask the applicant to present her or his case. This should be done as follows:

1. An introduction stating very briefly the issue and a summary of the facts. It is usually best to do this with the aid of written submissions. Submissions are easier to understand if they are (preferably) typed in the form of numbered points. Copies of written submissions should be presented both to the Adjudicator and to the other side.
2. The applicant should then call witnesses (if any). Good witnesses in tenancy cases may be neighbours, real estate agents, police, other tenants or friends.
3. It often helps to have available other supporting evidence which may be introduced in the course of examining witnesses. This should be shown to the witnesses and they should be asked to identify it. Some evidence (in particular, evidence which can be identified only by the landlord or the tenant) may also be presented separately after the witnesses have been called. Examples of supporting evidence include photos, condition reports, other reports, bank statements, receipts, letters (better if the person can come in) and sworn affidavits.

After each witness has given "evidence in chief" the respondent is entitled to ask questions by way of "cross examination".

When the applicant has completed her or his presentation of witnesses and supporting evidence, the respondent goes through the same procedure. The respondent should try to answer all relevant allegations that were made by the applicant.

When the respondent has completed the presentation of her or his case, both parties should take the opportunity to make brief concluding comments to the Adjudicator.

The Adjudicator will then either give a decision or inform the parties that time will be taken to write a decision which will be given at a later date.

Tenancy Tribunal Orders

• Before enforcing a Disputes or Tenancy Tribunal order it is suggested that you contact the other party for payment in full or by instalments.
• The two most common ways of enforcement are by way of a Distress Warrant or an Order for Examination.
  
  
• Bring the original copy of your order to the District Court or if applying through the mail, contact the Collections Unit for the application forms.
• A current address, for the debtor, must be provided by you before any enforcement action can be taken. If the court is unable to locate the debtor, it is your responsiblity to find a new address.
  
  
• Enforcement may only be filed by the applicant named on the original order. You must provide a listed director on whom to effect service.
• Upon application you will be given a NP enforcement number. This number must be quoted if you have any further inquiries.
• Applications must be sworn before a Deputy Registrar, Justice of the Peace or Solicitor.
• Filing fees are required for all enforcement action. (Excludes Disputes Tribunal matters.) A separate filing fee is payable for each defendant.

Distress Warrant

A distress warrant enables a Collection Officer to make a demand for the outstanding amount or seize goods indemnified by you.

1. The filing fee for a Distress Warrant is $55 per defendant for a Tenancy Tribunal or Notice of Proceedings matter. (NB: In both cases $55.00 is added to the total amount outstanding. If there is a payment in a Disputes case the court will take the first $55 to cover costs. The balance is forwarded to you.)
2. An indemnity must be provided if you require a particular asset to be seized. The Collection Officer can seize goods specified if they are accessible. (An indemnity allows the Collection Officer to seize goods specified by you. The item must be owned by the defendant. It is vital that you consider the price the item is likely to receive at auction, as any shortfall is payable by you.)
   NB: Details of items that may not be seized can be obtained from the Collections Office at the District Court nearest you.
3. Payment may be made by bank cheque or cash which will be banked by the Collections Unit then distributed to you thereafter. If the Collections Unit chooses to accept a personal cheque this will be held for 14 days to clear. If an item is seized it will be held for seven days, then sold at auction. After sale of these goods, any cost, such as storage, towing and auctioneers costs must be paid prior to you receiving your money.

Order for Examination

This an application to have the debtor brought before the court and examined as to their financial means. If the debtor has the means to pay, a court order will be make to determine the recovery of your debt.

1. The filing fee for an Order for Examination is $90 per defendant for a Tenancy Tribunal or Notice of Proceedings matter. There is no cost for a Disputes Tribunal matter.
2. Upon receipt of your application a hearing date will be set. If you are unable, or do not wish to attend this hearing the Registrar will act on your behalf.
3. A letter will be sent out to the debtor instructing them to come into the District Court to uplift a document within seven days. If the debtor fails to do this a Collection Officer will attempt service at the address provided by you.
4. If service is unsuccessful new information may be sought by you to continue proceedings. The hearing will not take place unless the debtor has been served three days prior to the hearing date. If you have not been notified of service, it is advisable that you contact the court to confirm that the debtor has been served.
5. If the debtor does not attend the hearing you will be notified and asked if you wish to issue a Warrant to Arrest. The debtor will be arrested and a hearing conducted. (There is no filing fee for this.)

Attachment Order

An attachment order is a court order made at an Order for Examination hearing. It involves payments to be made directly from the debtor's wages or Income Support benefit to your bank account. Applications for an Attachment Order must be filed at the District Court.

1. The filing fee for an attachment order is $80 per defendant for a Tenancy Tribunal or Notice of Proceedings matter. There is no cost for Disputes Tribunal matters.
2. The amount attached is ordered at the Order for Examination hearing. This amount is payable by the employer or Income Support, including any filing fees you may have previously paid.
3. Upon application you must provide your bank name and branch, account name and number for payments to be credited to.
4. If the debtor ceased employment, a further Order for Examination can be filed. However, if you know there are new employment details a further Attachment Order can be obtained. (NB: Fees are applicable on filing).

For further information on enforcing Tenancy Tribunal Orders, contact the District Court.

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