The Attorney General has issued the following bulletin in relation to CTTT Orders and daily occupation components of those Orders.
The Bulletin says:
‘Consumer Trader and Tenancy Tribunal (CTTT orders issued under section 51 of the Consumer Trader and Tenancy Tribunal Act 2011) are able to be registered for enforcement in the Local Court pursuant to section 133 of the Civil Procedure Act 2005.
Section 51 allows the Registrar of the CTTT to certify an amount as ordered to be paid by the Tribunal, and provides that such certificate, if registered in a court, which has jurisdiction to give judgment for a debt of the same amount, operates as a judgment. This implies a requirement for that amount to be a fixed sum.
Orders registered without referral back to the CTTT have led to some disputes between the parties as to the amount of the accrued occupation fee.
Issues have arisen in recent times relating to orders the Tribunal makes pursuant to Section 123 of the Residential Tenancies Act 2010, being an occupation fee ordered as a certain rate per day until possession of the premises are given to the landlord.
This order has led to various approaches being taken by Registrars, either allowing the client to quantify the amount of the occupation fee, or the Registrar referring the client back to the CTTT for the occupation fee to be quantified. Orders registered without referral back to the CTTT have led to some disputes between the parties as to the amount of the accrued occupation fee. This is not an issue for a Local Court to determine.
To ensure a consistent approach is taken by all Registrars, if a client attends with a CTTT Order including a provision for an ongoing daily occupation fee, that part of the order is not to be registered and the client is to be referred back to the CTTT for further orders to be made.’
To say the least, we find this directive to be extraordinary. Three points initially come to mind:
1. In all of our years in acting on behalf of clients for registration of CTTT Orders in the CTTT we have never once come across a situation where there has been a dispute as to the actual date possession of the premises was given to the landlord. When applying for registration we always prepare an Affidavit setting out the date of possession and calculating the amount payable pursuant to the daily occupation component of the Order.
2. It is erroneous for the Attorney General to say that to register in the Local Court and obtain a judgment ‘implies a requirement for that amount to be a fixed sum’. We agree that to get a judgment you need a fixed sum, but to imply that it is not possible for the Local Court to ascertain the date of possession and therefore fix a lump sum for the daily occupation component is quite erroneous.
3. We have never known of practices by Registrars in requiring a matter to be referred back to the CTTT.
This has further implications because no actual procedures have been laid down.
What this now means is that if you obtain an Order from the CTTT which includes an Order for payment of a daily occupation fee as part of it, we can register that component which is a ‘fixed’ sum, however for that part of an Order which contains a daily occupation fee, before we can register it, you would have to wait until after the tenant has given possession, and then apply to the CTTT to make a determination of a ‘fixed sum’ for the daily occupation component part of the Order.
This has further implications because no actual procedures have been laid down. For instance, is there a further application fee that will have to be paid to the CTTT? How long will you have to wait for a further hearing (given the fact that the CTTT is clogged already)? Will there have to be a further $80.00 filing fee paid to the Local Court for registering the second Order.
This is bureaucracy gone mad. There is a simple answer. Lay down a procedure for the Local Court to determine how the daily occupation component of the judgment is to be calculated – i.e. a requirement for an Affidavit setting out the required would be sufficient.
Do you agree. If so, email me at drew.lauchland@barclaymis.com.au.
