You can apply to the Local Court for an order on the disposal of the bond money if the owner/agent won't return the bond money, or you don't agree on the amount each person is entitled to. The application should be made to the Small Disputes Division of the Local Court nearest the rented premises. Application forms are available from the Court.
If the bond money is held in a joint account with the Bond Administrator, or in a joint bank account or in a tenancy bond trust account, you can lodge your application with the Local Court on a Form 6: Application for the Disposal of Bond Money . Information on making a Form 6 Application is detailed below.
If you signed a blank bond release form and the owner/agent took more bond than you agreed, or the owner/agent never lodged the money according to the Residential Tenancies Act (1987), your bond is not in a joint account. If this is the case, you should make a court application on a Form 12. However, some Local Courts will allow you to use a Form 6 even if you don't know where your bond money is. You should check with your Local Court. The process for making a Form 12 application is outlined below.
If your bond dispute goes to court, you can argue the owner should not be able to benefit from the illegal action of incorrect bond lodgement by claiming deductions. The court may order the entire bond be returned, even if deductions appear to be valid and the owner can prove the claims. This was decided in a previous Perth Small Disputes Division hearing (Plaint No. 67442/93). While there are no garauntees in a hearing, it is worth bringing to the court's attention.
If the owner/agent hasn't lodged the bond according to the Residential Tenancies Act (1987) (s.29) they may be penalised $1000 if prosecuted by the Ministry for Fair Trading. The Ministry will only act on written complaints by tenants. The Ministry does not always prosecute, but it is still a good idea to let the Ministry know if an owner/agent has acted illegally.
If you can't reach an agreement with the owner and refuse to sign the Bond Disposal Form, either you or the owner may make an application to the Local Court for a decision on what is fair. The following information will help you make an Application and understand the owner's response options. If it is the owner/agent who has applied to court, you should read the owner's options as if they were your options.
When making a Form 6 application, you will need to complete the following details:
If you believe you should get all of your bond money back, you may seek an order for the full amount to be returned. This means the owner will have to prove they are entitled to all deductions.
Once you lodge the application, the court will send a copy to the owner. The notice informs the owner they have seven days to respond to your application. On receiving the notice the owner has three options:
1. Ignore the notice
If the owner/agent has not responded to your application to the court within 7 days, the court may issue an order for you to be paid the money you have asked for. You won't have to present your case in court. A copy of the order will be sent to you, the owner and the financial institution where the bond is lodged. The bond money will then be paid according to the court order. A cheque will be sent to you at the address on the court application form, or you can take your copy of the order to the place where it is being held and ask for immediate payment.
2. Send the bond back within 7 days
On receiving a notice from the court, some owner/agents realise they can't provide a legitimate reason for keeping the bond and choose to return the money. If this happens, inform the court that you have received the money and no longer require an order. The court will then cancel your application.
3. Lodge a Notice of Intention to Dispute the Application
The owner/agent may choose to dispute the application. If so, the owner/agent must lodge a Notice of Intention to Dispute Application for Disposal of Bond Money (Form 5) with the court within seven days of receiving notice of your application.
If your application is disputed, you will be advised of the date when you and the owner/agent should appear in the Local Court for a dispute hearing.
You should also receive a copy of the owner/agent's form 5. This will help you prepare a response to the owner/agent's allegations. If you have not received a copy of the owner/agent's form 5, you should ring the court and ask them to send it.
The Form 12 Application may be used if you want the court to order the owner to return the bond and you don't know whether your bond money is lodged in a joint account.
When you (the applicant) lodge a Form 12 Application, you will be given a date when the court will hear the claims of both you and the owner/agent.
The Form 12 has two main sections:
You will also need to provide other details on the form:
The owner (the respondent) will be sent a copy of the application and a notice of the hearing date and time. The owner doesn't have to let the court know if they intend disputing the application. They may attend the hearing to tell their side of the story if they want to. If the property is managed by a real estate agency, the agent may appear on the owner's behalf.
See section 6.2 Going to Court for more information.
As of July 1996, it costs $26.70 to lodge an application, or $19.70 if you have a health care card or a pension card. If you are successful in court you can ask that your application fee be refunded.
If you are applying for the full return of your bond on a Form 6, you can't include a claim for the application fee. This is because the bank, building society or bond administrator can't be ordered to pay more money than they are holding. If you want all your money back plus the application fee you can apply on a Form 12.
If you want to change your application from a form 6 to a form 12, you will need to write or go into the court and explain as soon as possible. The court needs plenty of time in which to notify the owner/agent of the change.
Once the court has heard all the evidence, they will make a judgement and issue a court order. You and the owner will be legally bound by this decision. The order will state how much money each party will receive. A copy of the court order will be sent to the applicant, respondent and, if the application was made on a Form 6, the place where the bond money is held . If the order states the owner must pay the money you can approach them immediately.
Arrange a deadline for the owner to return the money. If the money is lodged correctly, you will be sent a cheque as soon as a copy of the court order is received. See section 6.2 Going to Court for more information.
If the owner doesn't return the bond money, you may get a bailiff to collect it by issuing a warrant of execution, or apply for a judgement summons. Staff at the Local Court can provide you with information on how to do this.
The owner can take the same action against you if the court orders that you owe the owner more than the bond money.
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