Consumer & Commercial

Conciliation case studies​​

Consumer and Commercial Division

The following case studies reflect decisions made by the former Consumer, Trader and Tenancy Tribunal, which became the Consumer and Commercial Division of NCAT from 1 January 2014.

These case studies should not be viewed as precedents.  They are provided as a general guide only and should not be treated as legal advice or relied upon as such.  All Tribunal matters are determined on the merits of the individual case and the supporting evidence.

 

An unexpected eviction 

Conciliation gives parties an opportunity to meet each other, discuss their issues and reach a compromise that meets both their needs.  Tribunal Conciliators can assist by providing options and solutions to help resolve the dispute.

Thanh lived with her husband and 5 children in a rental home which was located near to her children's school.  She considered herself a good tenant as she kept the house clean and always paid her rent on time.  The landlord sent a termination to Thanh telling her she had 90 days to vacate the premises.  There was no reason given for the eviction and Thanh could not understand why they were being asked to leave.  By the time the termination notice date came, Thanh still hadn't found a suitable home for rent in the local area, and an application had been lodged with the Tribunal to end the tenancy.

On the day of the hearing, both parties were asked to attempt conciliation, with an interpreter present to assist Thanh.  A Tribunal Conciliator was available to assist and she ensured the parties understood how to proceed with the conciliation process. 

Thanh said she was sorry she had not moved out and that she had only recently found a new home that was available in one month's time.  The landlord explained that he needed the house for his sister and her children who were coming from overseas to live in Australia.  He had promised his sister that she could live in the house when she arrived and she was due in 3 weeks’ time.

The Conciliator asked the parties to consider options and suggested some alternative solutions.  The landlord took some time out from the conciliation and called his family to arrange temporary accommodation for his sister.  Thanh agreed to vacate in 4 weeks.  They returned to the hearing room with their conciliated agreement, and a Tribunal Member made legally binding consent orders.

Faulty fitness equipment 

Sometimes disputes arise because of a lack of communication.  Conciliation can give parties an opportunity to discuss their issues and gain a better understanding of the other person's point of view.

Ben purchased a treadmill from a local fitness equipment shop.  The treadmill stopped working after one week, so Ben called the shop and arranged for them to collect the machine and carry out repairs.

Ben called the shop one month later and was told the repair work had not commenced as they were waiting for a replacement part.  He called back again regularly to check on the repair progress, until the shop stopped retuning his calls.  Ben then applied to the Tribunal for a refund of the $2,400 paid for the treadmill.

When Ben and the shop owner arrived at the Tribunal, they were asked to attempt conciliation.  A Conciliator was not immediately available, however the procedures for a successful conciliation were in the room to assist the parties, and they began the conciliation process on their own. 

The shop owner told Ben that the replacement part had arrived and they could now fix the treadmill.  Ben refused and said there had been too many promises over a long period of time for the repairs to be done, and that now he just wanted his money back to buy a new machine.
The Conciliator checked on the parties.  After a short discussion, the Conciliator helped Ben realise that his dispute was really about poor customer service.  He felt there had been little or no communication from the shop and it had taken far too long to carry out the repairs.

The shop owner apologised for the poor customer service and acknowledged they could have done better.  Ben was prepared to allow the shop to carry out the repairs providing they gave him a 12 month warranty on the machine from the date of repairs, which the shop owner agreed to.  They reached a settlement and consent orders were made by the Tribunal formalising their agreement.

A crooked tile or two 

Conciliation in home building matters can help parties resolve their dispute quickly and avoid a potentially long hearing.

Maria and Andy were renovating their bathroom and, to save on costs, they bought a lot of the material themselves including $5,000 worth of tiles.  They then arranged for a tiler to lay the tiles for $4,000.  However, when the tiling was finished they were not happy with the final result.  They thought the tiles were not all laid completely flat and the grouting lines were crooked. 

The tiler explained that the particular type of tiles they had bought were extremely difficult to lay, and he offered to go back and re-lay any tiles that were laid incorrectly.  However, the couple had lost confidence in the tiler and were not prepared to let him back into their home, as they were concerned he would made the tiles look worse.  Maria and Andy lodged a claim at the Tribunal for $9,000 being the cost of the tiles and labour.

On the day of the Conciliation and Hearing, the tiler attended with his partner who was a full-time carer for their one year old son.  The tiler was very distressed and angry about the refusal by the Maria and Andy to let him come back and fix the tiling as he was unemployed and did not have enough money to pay them.

The tiler’s partner and Maria decided to talk with each other, without their respective partners, to take the heat out of the situation.  They both agreed the tiling work was faulty and had to be done again, but that it was probably not a good idea for the tiler to return to the job.  Maria and the tiler’s partner agreed an amount of $6,000 should be paid by the tiler.  They could not agree, however, about when and how the money would be paid.

The tiler said he could pay Maria and Andy the $6,000 however due to his financial situation it could only be done by instalments.  The tiler and his partner had some savings which would enable them to pay an initial amount, and he expected to find work shortly which would ensure the balance was paid by regular instalments.

This outcome came about because the parties were willing to understand each others’ situation.  The discussion at the hearing venue allowed them to reach an agreement which would mean the tiler could afford to pay the amount outstanding.  Had the matter gone to hearing and a money order been made, there was the possibility the order would send the tiler bankrupt.  This could have resulted in Maria and Andy receiving no payment.  The agreement also avoided a potentially long hearing.  It was both cost effective and timely to reach agreement at conciliation.

Locked out of home 

In conciliation, parties need to put aside their personal differences and focus on solutions to resolve the dispute.

Bill was significantly behind in his rent, and one day found himself unexpectedly locked out of his unit.  Bill called the landlord to arrange to collect his belongings including his bed, books and laptop which were still in his bedroom.  However the landlord refused, and said he was keeping the goods as "compensation".   Bill then lodged an urgent application with the Tribunal, for access to the premises to collect his belongings.

At the Tribunal, Bill and the landlord were very hostile and argumentative towards each other.  They refused to talk without the assistance of a Conciliator.  When the Conciliator met with them, she helped them to calm down and listen to each other’s point of view and start working towards a solution.  The Conciliator helped Bill and the landlord go through their respective positions to clarify the issues in dispute, and ensured they did not get side-tracked from the issues.

The Conciliator then asked Bill what he really wanted.  Bill said he just wanted to collect his things and "get on with his life".  The landlord understood that his actions were unlawful, and agreed for Bill to collect his possessions any time during the following week.  The parties then agreed to arrange a time for Bill to collect his belongings.

Bill and the landlord then attended the hearing room.  The Tribunal Member went over the conciliation agreement with the parties and clarified the times agreed, so there could be no later confusion.  The Member then made orders in accordance with their agreement.

If you don't reach agreement 

Even if the conciliation process is unsuccessful, a partial agreement can help parties resolve their dispute more quickly.

Ali had lived in her rental property for 5 years when she needed to move due to work commitments.  She gave notice to the real estate agency and, after vacating the property, applied for a rental bond refund. The real estate agency was notified and they lodged a rental bond application to the Tribunal claiming costs for cleaning and repairs.

At the Tribunal, Ali and the real estate agent were asked to attempt conciliation.  During conciliation, it became clear that that agent had not spoken to Ali at all about the claim for cleaning and repair costs.  Ali was in complete shock about the size of their claim, and the agent was not prepared to negotiate at all as he had strict instructions from the property owner.  The Tribunal Conciliator spent some time with the parties, giving them an opportunity to discuss the outgoing condition report and to discuss items which might be considered 'fair wear and tear' rather than damage. 

The parties were unable to settle and the matter went to hearing before a Tribunal Member.   Conciliation had given the parties a clearer understanding of the issues in dispute, and several aspects of the condition report were agreed upon.  The Tribunal Member noted their agreement and the hearing was faster due to the partial agreement reached at conciliation.  Both the agent and Ali felt they were able to present their case more clearly as a result of the conciliation process.

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