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Dispute Resolution Process for Commercial and Retail Leasing in each state

Even where every effort has been made to negotiate a fair lease, issues can nevertheless arise between the landlord and tenant in commercial and retail leases.

The first step when dealing with a dispute, is to read the terms of your lease carefully.

Often, there will be a dispute resolution clause which will outline in varying degrees of detail the steps you should take to attempt to resolve the dispute. Usually the initial port of call will be an informal discussion with the other party, where you try to reach agreement between yourselves.

If you are unable to resolve the problem between yourselves and by following the dispute resolution procedure set out in your lease, you will need to follow the formal process set out in the legislation which applies in your State or Territory.

The table below summarises the applicable legislation and the process to follow in attempting to resolve your dispute.

State or Territory Which legislation applies? What is the process for resolving a dispute?
VIC Retail Leases Act 2003
  • The Victorian Small Business Commissioner is a State Government organisation set up to provide information and guidelines to tenants and landlords on retail leasing and commercial disputes. The VSBC can assist retail tenants with low cost mediation in retail tenancy matters.
  • Any or all parties to a retail premises lease may refer a retail tenancy dispute to the Small Business Commissioner for mediation.
  • Retail lease disputes must first be referred to the Victorian Small Business Commissioner before they can progress to the Victorian Civil and Administrative Tribunal.
  • In the case of disputes, the Small Business Commissioner arranges lost cost mediation or alternative dispute resolution by a suitably qualified, independent person.
  • If this process fails to resolve the dispute, the Small Business Commissioner may certify in writing that mediation or another appropriate form of dispute resolution has not or will not resolve the dispute, and the matter may be referred to VCAT.

 

For further information, go here

QLD Retail Shop Leases Act 1994
  • If a tenant and landlord are unable to resolve a retail tenancy dispute, a Form 4 - Notice of dispute - Retail Shop Leases Act 1994 form may be lodged with the Queensland Civil and Administrative Tribunal registry.
  • The mediation conference is the first step in the dispute resolution process under the Act. A party to a dispute cannot be compelled to attend a mediation conference. However, the merits of attending a mediation conference cannot be ignored as many disputes are resolved at this stage.
  • The mediation is a private negotiation between the parties to the dispute with the assistance of an independent mediator. The mediator does not decide the dispute but assists the parties to resolve the issues.
  • In some cases mediation will not be successful. If a dispute appears to be within QCAT’s jurisdiction, the mediator must refer the dispute to QCAT when an agreement cannot be reached at mediation or one of the parties in dispute fails to attend the mediation conference.
  • If the mediator is of the opinion that the dispute is not within QCAT’s jurisdiction, the mediator will advise the parties that the matter will not be referred to QCAT. If a party disagrees with the mediator about whether a dispute is within QCAT’s jurisdiction, the party can apply to QCAT for an order to resolve the retail tenancy dispute using Form 34 - Application for an order to resolve a retail tenancy dispute.

For further information, go here

TAS Fair Trading (Code of Practice for Retail Tenancies) Regulations 1998
  • A landlord and a tenant must attempt to resolve any dispute between them by direct negotiation.
  • If negotiation fails, either party may request the Office of Consumer Affairs to investigate the dispute and attempt to negotiate a mutually acceptable solution.
  • If a dispute remains unresolved, either party may refer the dispute to the Monitoring Committee for conciliation.
  • If the dispute remains unresolved, either party may refer the dispute to a court of competent jurisdiction.

For further information, go to
http://www.consumer.tas.gov.au/property/retail_tenancy

SA Retail & Commercial Leases Act 1995
  • A retail lease dispute may be referred to the Small Business Commissioner for small business for mediation.
  • If the dispute is not resolved at mediation, or if one of the parties refuses to attend mediation, the Magistrates Court has jurisdiction in relation to retail shop lease disputes.
  • A matter may be referred to the District Court if the claim exceeds $40,000.

For further information, go to
http://www.sasbc.sa.gov.au/retail_leasing/lodge_a_retail_or_commercial_dispute

WA Commercial Tenancy (Retail Shops) Agreements Act 1985 incorporating the Commercial Tenancy (Retail Shops) Agreements Amendment Act 1998 and the Commercial Tenancy (Retail Shops) Agreements Amendments Act 2011
  • The Small Business Commissioner’s role is to provide assistance to attempt to resolve disputes relating to retail shop leases. Both tenants and landlords can approach the Small Business Commissioner for assistance to resolve their dispute.
  • Depending on the nature of the dispute, it may be appropriate for the dispute to be referred to mediation.
  • In most circumstances, parties wanting to apply to the State Administrative Tribunal must first obtain a certificate from the Small Business Commissioner and include this with their application.
  • Parties may go directly to the State Administrative Tribunal for certain administrative or urgent matters.

For further information, go here

NSW Retail Leases Act 1994
  • Parties must attempt mediation with the NSW Small Business Commissioner before applying to NSW Civil and Administrative Tribunal.  Exceptions are applications for urgent inte​​​rim orders or the appointment of a specialist retail valuer. ​
  • If mediation is unsuccessful, you will receive a certificate from the NSW Small Business ​Commissioner.  You must attach this certificate to your application to NSW Civil and Administrative Tribunal.

For further information, go to
http://www.ncat.nsw.gov.au/Pages/cc/Divisions/Retail_leases.page.aspx#dispute_resolution_process

ACT Leases (Commercial and Retail) Act 2001
  • All disputes are to be resolved by applying to the Magistrates Court.
  • The Act sets out a process of preliminary hearings, mediation and court hearings in the Magistrates Court.
  • A party may also appeal to the Supreme Court from a decision of the Magisrates Court.

 

For further information, go here

NT Business Tenancies (Fair Dealings) Act 2003
  • Parties to a retail shop lease or former parties to a former retail shop lease may apply to the Commissioner of Business Tenancies for determination of a retail tenancy claim.
  • A party to an application for determination of a retail tenancy claim may appeal to the local court against a retail tenancy order.

For further information, go here



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