Retail shop lease disputes

A retail shop is a premises that is:

• situated in a retail shopping centre; or
• used wholly or predominantly for the carrying on of a retail business

A lease is a legally binding contract that outlines the terms of occupying a premises for an agreed fee. Once signed, you must comply with your obligations under the lease such as paying rent, for the full term of the lease.

A retail shop lease is where you have made a legally binding agreement to lease a retail shop.

A retail shop lease does not include a lease of any of the following:

• a retail shop with a floor area of more than 1,000m²
• a retail shop within the South Bank corporation area if the lease is entered into or granted by the South Bank Corporation and is a perpetual lease or another lease for a term, including renewal options, of at least 100 years
• premises used wholly or predominantly for the carrying on of a business by a tenant for a landlord as the landlord’s employee or agent
• premises in a theme or amusement park
• premises at a flea market, including an arts and crafts market
• a temporary retail stall at:
  • an agricultural or trade show; or
  • a carnival, festival or cultural event
• premises that, if the premises were not leased, would be premises within a common area of a retail shopping centre, but only if the premises are used for 1 or more of the following:
  • an information, entertainment, community or leisure facility
  • telecommunication equipment
  • an automatic teller machine
  • a vending machine
  • an advertisement display
  • storage; or
  • parking

(For the full list of what a retail shop lease does not include please view the Retail Shop Lease Act 1994)

QCAT does not have the power to hear commercial leasing disputes. If you bring a commercial leasing dispute to QCAT it may be dismissed.

You should seek independent legal advice about resolving your commercial leasing dispute or contact the QSBC for further options to resolve a commercial leasing dispute here.

Disputes can arise from a disagreement between a tenant and landlord under or about a retail shop lease.

Your retail shop lease dispute may relate to:

• compliance with a notice issued by a specialist retail valuer
• the procedure for rent determination
• termination of lease
• assignment of lease
• outgoings/operating expenses
• bond/security deposit/bank guarantee
• condition of the property
• misrepresentation
• compensation
• end of lease negotiations
• disclosure statements; or
• financial and legal advice reports

(For further information please view the Retail Shop Lease Act 1994)

In deciding Retail Shop Lease disputes, QCAT has a monetary limit of $750,000.

Before a retail shop lease dispute is mediated with the Small Business Commission (SBC) or considered further by QCAT, if a situation emerges that requires urgent action QCAT can make an interim/injunction order.

An interim/injunction order is an order made in a proceeding before the final decision is made. It may protect a party’s position while the proceeding is running or provide for something to be done to make sure that any final QCAT decision can be effective. These orders are temporary and may prohibit a person from performing a certain action until the case is considered.

If satisfied it is in the interests of justice, QCAT can consider this type of application in the absence of the respondent party.

Whether you have commenced a dispute with the Small Business Commission (SBC) or your dispute is with QCAT for further determination, you must make the interim/injunction application directly to QCAT for determination.

The process to apply for interim/injunction orders is set out below. Please select 'application for interim/injunction orders' at the bottom of the page.

The SBC mediator must refer the case to QCAT if after participating in the SBC dispute resolution process, the dispute is:

• within QCAT’s power to hear and decide the case; and
• the parties cannot reach a solution at mediation; or
• a party did not attend mediation; or
• the case was not settled within 4 months; and
• the retail shop lease has not ended more than 1 year before the dispute was lodged.

The SBC mediator will refer the case to QCAT using a QCAT referral form attaching the ‘Notice of Mediation Outcome (NOMO) and mediation documents. A new QCAT file will be created for the dispute and the parties will be notified. No fee is payable for the referral.

If you have participated in the SBC retail shop lease dispute mediation process and the case has been resolved, you do not need to do anything further. Generally, a copy of the mediation agreement will be issued to the parties at the mediation and the dispute closed.

A party may apply to QCAT for an order to resolve a retail tenancy dispute following the SBC mediation process, if the retail shop lease has not ended more than 1 year before the dispute was lodged, and:

• there was a breach of the mediation agreement; or
• the SBC is of the opinion that the case was not within QCAT’s jurisdiction and did not refer the case to QCAT

The application should include:

• evidence that the mediation or attempted mediation has occurred
• and/or where it is alleged there has been a breach of the mediation agreement, a copy of the agreement between the parties

QCAT sets out how to make this type of application below. Please select 'application for order to resolve a retail tenacy dispute' at the bottom of the page.