ACT
See Part 14. The Magistrates Court has jurisdiction to hear and determine applications (section 144). Section 17 sets out disputes in relation to which an application may be made.
See sections 147-149. The Magistrates Court must hold a case management meeting for each application it receives to determine whether resolution is likely or not, and if:
- likely: the Court must promote settlement either at the meeting or by referral to other dispute resolution mechanisms; or
- unlikely: the Court must give directions about how the proceedings will be conducted.
Procedures for hearings are outlined in section 151 and, if appropriate, the proceeding may be transferred to the Supreme Court (section 152).
NSW
See Part 8. Section 63 covers RTDs being disputes between parties to a retail shop lease even if the lease is entered into before the commencement of the Act.
Section 5 of the Retail Leases Regulation 2022 (NSW) provides that where premises become a retail shop due to the commencement of the Regulation, Part 8, Division 2 of the Act (Mediation) applies to a lease of premises entered prior to the commencement of the Regulation, and a lease of premises entered into under an option granted or agreement made prior to the commencement of this Regulation.
Section 68 provides that RTDs or other disputes or matters specified cannot be the subject of any court proceedings (defined to include a tribunal or an arbitrator), unless the Registrar has certified that mediation or some other form of alternative dispute resolution of the dispute has failed or is unlikely to resolve the dispute or matter. Section 67 provides that mediation is not limited to formal mediation procedures. An exception to this provision is if a court is otherwise satisfied that mediation under the Act is unlikely to resolve the RTD.
NT
See Part 11. Parties to a retail shop lease may refer a claim to the Commissioner of Business Tenancies for conciliation.
If the parties are unable to resolve the dispute, the claim can be referred to courts or (where the claim is less than $10,000) proceed to an inquiry.
An inquiry is conducted by the Commissioner and is open to the public. The Commissioner has a number of powers in Division 4 of Part 11 to request evidence, however is not bound by evidentiary rules. The Commissioner may make orders set out in section 102.
The Local Court may hear and determine retail tenancy claims in respect of any disputed matter (unless the claim involves a monetary amount in excess of $250,000, which is the limit of the Local Court’s civil jurisdiction). Otherwise, the Supreme Court has jurisdiction to hear and determine retail tenancy claims that relate to monetary amounts in excess of $200,000.
Retail tenancy claims can only be the subject of court proceedings where the remedy sought is in the nature of an injunction, or if the Commissioner of Business Tenancies certifies that the parties have failed to resolve the claim after a preliminary conciliation conference (but prior to an inquiry being commenced).
Parties to retail tenancy proceedings may be represented by lawyers, and where a matter proceeds to court and the amount recovered is less than $10,000, no costs are recoverable unless the court is satisfied that there were reasonable grounds for the plaintiff to believe it was entitled to $10,000 or more.
Unconscionable conduct claims are excluded from the tenancy dispute provisions, and must be brought before a court.
QLD
See Parts 8-9. The Act provides for resolution of disputes through mediation (sections 54-115) and by reference or application to the QCAT processes under the QCAT Act 2009 (sections 63-64) respectively.
Where a dispute has not been resolved through mediation, a mediator or party may refer a dispute to QCAT in specified circumstances.
QCAT may direct the parties to attend compulsory conferences or mediation (QCAT Act sections 67 and 75).
QCAT also allows sub-tenants and franchisees to apply to be joined to a QCAT proceeding including regarding compensation claims and refer matters to the QCAT even though they are not the tenant (QCAT Act section 42).
SA
See sections 63-69. Parties to a retail shop lease may refer a dispute to the Small Business Commissioner for mediation.
The Commissioner may intervene in proceedings before a court concerning a dispute about a retail shop lease.
The Magistrates Court is the relevant jurisdiction (unless the claim involves a monetary claim exceeding $100,000, in which case the Magistrates Court must on the application of a party to a proceeding refer the matter to the District Court).
TAS
See section 39. The parties must first attempt to resolve any dispute by direct negotiations. If this fails, either party may request the Office of Consumer Affairs and Fair Trading to investigate the dispute and attempt to negotiate a mutually acceptable solution. If the dispute remains unresolved, then either party may refer the dispute to the Retail Tenancies Code of Practice Monitoring Committee for conciliation. If this fails, then either party may refer the dispute to a court of competent jurisdiction.
VIC
See Part 10. Similar to NSW. RTD means any dispute between a landlord and tenant arising under or in relation to a lease of retail premises even if the Act or former retail legislation does not apply. RTD does not include a dispute solely relating to payment of rent or a dispute re turnover or CMR capable of determination by an SRV.
Before the RTD goes before the Tribunal, the Small Business Commission must certify in writing that mediation or another appropriate form of alternative resolution has failed or is unlikely to resolve the RTD. This does not apply to injunctions.
A guarantor of a tenant's obligations under a lease and a person who has given an indemnity to a landlord for loss as a result of breach by the tenant may refer a dispute to the Small Business Commission for mediation (section 86(1A) & (1B)).
WA
See Part III.
See "Retail tenancy claim by commercial tribunal" for WA SAT jurisdiction.
Where both the WA SAT and a court has jurisdiction, proceedings may be instituted before either the court or the WA SAT, but not both.
If proceedings are instituted before a court, but the WA SAT also has jurisdiction the parties may agree, or the court may determine, that the matter be transferred to the WA SAT. The matter will then be transferred to the WA SAT and will be heard and determined as if instituted before the WA SAT.
The converse also applies to proceedings instituted before the WA SAT.
SBC
The SBC is a new concept in WA. The role has been set up under the Small Business Development Corporation Act 1983 by the Small Business and Retail Shop Legislation Amendment Act 2011. That legislation has also extended the role of the SBC into the Retail Act.
For example, section 25A allows persons to a retail shop lease who are entitled to take a matter to WA SAT to request the SBC to provide assistance or an alternative dispute resolution process for the matter.
Under section 25D a matter cannot be brought before WA SAT for determination unless the SBC has issued a certificate under section 25C that alternative dispute resolution is unlikely to resolve the matter, would not be reasonable or has failed. The SBC certificate can also be used by the SBC to include a report to SAT about the conduct of the parties in any dispute resolution before the SBC.
Certain disputes may be excluded from section 25D by regulation and there will be no need for SBC certification before going directly to WA SAT.
Under section 25E the SBC may at any time intervene in SAT proceedings.
Under section 30A, the role of SBC in relation to the Retail Act is to provide assistance in attempting to resolve disputes under retail shop leases or to provide information and guidance in relation to retail shop leases.
Under section 26(2) WA SAT can have regard to the SBC's certificate (eg. conduct of the parties) when awarding costs.
Definitions and currency