Relations between a retail shop tenant and their landlord don’t always go smoothly. Disputes can arise over many issues, including how the shop is used or who is responsible for repairs. In Queensland, the Retail Shop Leases Act 1994 (Qld) (the Act) sets out a process for resolving retail lease disputes.
Unfortunately, retail lease disputes are not always clear-cut. It’s important to refer to both the terms of the lease and how the Act requires disputes to be resolved. This article explains how to work through the resolution process for retail lease disputes in Queensland.
Ensure that the Act Covers Your Lease
Before starting the dispute resolution process, you need to consider whether the Act covers your lease. The Act only covers retail leases, not commercial leases. To determine if the Act covers your lease, you need to answer two questions:
- Is the premises a retail shop?
- Do exceptions apply?
Is the Premises a Retail Shop?
In QLD, a retail shop is one that predominately carries on a retail business — one that sells goods. For example, the Act would not cover professional offices that only have a small retail component taking up part of the floor area.
Do Exceptions Apply?
The Act lists exceptions that are not retail shop leases. For example, a shop with a floor area greater than 1000m2, or a shop in an arts and craft market. There are many such exceptions, so the tenant should ensure that their lease does not fall into any one of them. If an exception applies, then the lease is a commercial lease which the Act does not cover.
The Act first asks that retail lease disputes go to mediation. Mediation is a discussion facilitated by an impartial mediator. Unlike court proceedings, it aims to come to a resolution that both parties agree to. To start mediation, a dispute notice (Form 4 – Notice of Dispute) must be lodged with the Queensland Civil and Administrative Tribunal (QCAT). QCAT will nominate a mediator and give both the landlord and tenant a date for the mediation. You do not have to attend the mediation. However, mediation may let you resolve the dispute faster and at a lower cost than other methods.
It is usual for each party to conduct their own case at a mediation. If you want to be represented by a lawyer, you must first gain the mediator’s approval. The mediator will approve representation in cases where the party is a corporation or the mediator believes an agent should be allowed.
The mediation must be held in private. If you do reach a resolution, the mediator will write an agreement. Both parties will then sign this agreement.
Referral to QCAT
If the mediation does not resolve the dispute, the mediator may refer it to QCAT. Alternatively, you may also apply to QCAT if the other party failed to comply with a mediation agreement.
At the hearing, QCAT will listen to each side’s claims and make an order. For example, to pay financial damages. You can call witnesses if necessary. You will need to pay your own costs to attend the hearing. However, QCAT may order one party to pay all or part of the other party’s costs if it is in the interests of justice.
If the dispute remains unresolved after the QCAT hearing, you may be able to appeal the decision.
Queensland legislation sets out a specific process for resolving retail lease disputes. First, the tenant and landlord should go to mediation, which may produce an agreement to resolve the dispute. If that doesn’t work, the dispute may be referred to QCAT. However, if a dispute gets to this stage, it’s worth getting legal advice to determine the strength of your claims. If you need assistance to resolve a retail lease dispute, call LegalVision’s leasing lawyers on 1300 544 755 or fill out the form on this page.
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