Retail Lease Disputes

The Retail Leases Act (‘the Act’) is a specific piece of legislation that has been enacted to deal with the number of retail lease disputes that occur.

The Act provides a procedure for resolving a retail lease dispute. This procedure is as follows:

Negotiation

Negotiation can take many forms but is essentially a dialogue directly between the parties in dispute attempting to resolve the dispute on a commercial basis.

Mediation

Mediation is a more structured form of negotiation that involves a third party – the Mediator – helping the parties resolve the dispute. If parties engage in mediation they will be bound by confidentiality obligations not to disclose the issues raised during the mediation.

Parties may apply to the NSW Small Business Commissioner to arrange a mediator.

Mediation, or attempts to arrange a mediation, should be a step taken before applying to a Court or the NSW Civil and Administrative Tribunal (‘NCAT’) to resolve a dispute.

Litigation - NCAT

A party must meet the threshold requirements set out by the Act to make an application to NCAT to resolve a retail lease dispute:

• A certificate from the NSW Small Business Commissioner must accompany the application stating either:
  • mediation was unsuccessful; or
  • mediation was unlikely to resolve the dispute. 

 The application must be either:

• a retail tenancy claim; or
• an unconscionable conduct claim.

The conduct that is the subject of the claim must have taken place within the last three years; and
The claim cannot exceed $400,000. 

It must be noted that the NCAT is not a Court and therefore does not follow all of the strict procedural rules of a Court. In addition, it is not guaranteed that you can be legally represented in the NCAT. A request must be made for legal representation to the NCAT.

Litigation – Court

Courts do not often deal with retail lease disputes as the Act states that the NCAT and not a Court should address these issues. 

A preliminary question a Court must deal with if it receives a retail lease dispute is whether or not it would be in the ‘the interests of justice’ to hear the matter as opposed to transferring it to the NCAT.

For example a retail lease dispute may have come before a Court to seek a Court order that the landlord does not terminate the will. This is an order only a Court can make.

If you have further questions, please contact us at frank@franklaw.com.au.

This is not legal advice.