The Process of Resolving Retail Lease Disputes

If a dispute in relation to a retail lease arises under the Retail Leases Act 1994 (“RLA”) the parties are, as a first step, required to submit the matter for mediation before commencing proceedings before any court. If the parties are unable to reach an agreement or resolution to the conflict through mediation, the registrar must certify in writing that mediation under the RLA was unsuccessful. The costs of mediation are to be divided between the parties in a way that they agree to among themselves, or in equal proportions if they do not come to an agreement.

Application

Any party to a retail lease may lodge an application to determine a retail tenancy claim with the Tribunal. The application must be made within 3 years from the date that the dispute arose. However if the Tribunal wishes, the claim may be determined after 3 years, but not more than 6 years, from the date that the dispute arose.
To enable for the Administrative Decisions Tribunal (“ADT”) to hear the matter, an application needs to be made together with supporting documents and the application fee needs to be paid, which is in the amount of $77.00. The ADT also require a certificate provided by the Retail Tenancy Unit stating that mediation has been unsuccessful in resolving the dispute, otherwise the application cannot be accepted or heard by the tribunal.

Mediation

Most retail tenancy claims are resolved through mediation, however if the parties do not reach an agreement, the next step is to proceed the matter to the ADT. Statements that has been made by the parties in mediation pursuant to arrangements made by the tribunal may not be relied upon as admissible evidence at the hearing. Usually the parties pay their own legal costs, but the ADT has the discretion to order for one party to pay the other party’s costs.

The Hearing

The Tribunal has no jurisdiction to decide in matters in which the monetary amount are more than $400,000. When the ADT has accepted the application the matter is listed for directions, at which the tribunal will assist the parties to agree on a timetable in the matter and a hearing date will be set. Hearings in the tribunal are less formal than court hearings. The decision made in the tribunal is provided in written form and contains the orders made by the Tribunal Member and the reasons for the making the decision.
The ADT may make one of the following decisions:
• To grant the orders sought by the applicant;
• Grant part of the orders sought; or
• Dismiss the application in full.

If a retail tenancy dispute is commenced as civil proceedings the matter may be transferred to the ADT to be dealt with under the RLA if one of the parties to the proceedings makes such an application. The proceedings may be transferred if the court is satisfied that the dispute may be dealt with efficiently by the tribunal, that such a transfer is appropriate and the interests of justice do not require the matter to be dealt with by the court. There is a general principle that retail disputes should be dealt with by the tribunal rather than the court.

Enforcement of orders

If the ADT orders for a party to pay an amount of the claim to the opposite party the amount must be certified by a registrar. The certificate must identify the person liable to pay the certified amount and it must be filed in the court registry which has jurisdiction to give a judgement for a debt in the certified amount. After the court has given a judgement the debt may be collected and enforced by traditional means.