Leasing Disputes under Australian law and Commercial Tenancy Tribunal

Leasing Disputes

Under Australian law, as soon as an individual signs a commercial lease, he is legally bound to fulfil all terms and conditions of the lease, including the payment of rent, for the whole duration of the lease. Verbal agreements to change the lease are not binding in Australia. If a tenant and the landlord (the individual or business entity leasing the premises) desires to amend the terms and conditions of the lease, such amendments must be set forth in writing, usually with the participation of commercial lawyers such as Lynn & Brown on one side and another firm representing the other side. Both the tenant and landlord must consent to any alterations in the lease. If both the tenant and landlord are completely aware of and consent to the lease conditions, there should be no disputes. Common grey areas, or the areas for confusion involve rent increases and lease renewals.

One of the reliable means of handling leasing disputes is mediation. A hearing by a special tribunal may be viewed as another way to remedy leasing conflicts and disputes. Each State and Territory of Australia has its own tribunal that specialises in handling commercial tenancy disputes. Thus, ACT Tenancy Tribunal was established in 1994 to handle disputes concerning retail premises, or premises located in a shopping centre and small commercial premises that are not located in a shopping centre. The ACT Tenancy Tribunal presently rests its decisions on the Leases (Commercial and Retail) Act 2001.[1]

In New South Wales, the Consumer, Trader and Tenancy Tribunal hears cases between landlords, tenants, traders and consumers. The Tribunal has several divisions that specialise in tenancy, social housing, home building, strata and community schemes, retirement villages, motor vehicles, residential parks, general matters, and commercial matters.

In Northern Territory, disputes between landlords and tenants are heard by the Department of Consumer and Business Affairs that operate in the system of the Department of Justice. This adjudicative body is purposed to encourage and regulate responsible business activities by way administering a regulatory system that safeguards consumer interests. Also, Consumer Affairs administers the enforcement of the following appropriate Acts: Accommodation Providers Act, Business Tenancies (Fair Dealings) Act, Residential Tenancies Act, and Retirement Villages Act.[2]

As far as Queensland is concerned, the Queensland Civil and Administrative Tribunal (QCAT) is authorised to render and review decisions related to a wide range of disputes there. The most common disputes include retail shop lease disputes, residential tenancy disputes, consumer disputes, as well as minor civil disputes. Commercial disputes and result from a disagreement between a landlord and tenant are handled first through mediation, then by way of a hearing. By contrast in South Australia, tenant-landlord disputes are heard by the Civil (Consumer and Business) Division of the Magistrates Court that operates as the commercial tenancy tribunal. However, prior to filing an application to the Court, the interested parties must lodge their disagreement with the Office of Consumer and Business Affairs. There, the disputing parties will be assigned an independent mediator to facilitate negotiations between them and the other party. Mediation is only available if all parties to the dispute mutually consent to it and split its costs. However, if one party opts out of mediation, or the mediation is futile, the issue may be handed over to the Magistrates Court.

In Tasmania, disputes stemming from the area of commercial tenancy are addressed by the Consumer Affairs and Fair Trading as a subdivision of the Department of Justice. This is the first authority to hear a commercial tenancy dispute. If the department is incapable of resolving the issue, it will then be transferred to the general courts of law.

In the state of Victoria, commercial tenancy disputes are heard by the Victorian Civil and Administrative Tribunal. In addition to hearing residential tenancies and retail tenancies, the tribunal also handles disputes pertaining to purchase, supply of goods, domestic building operations, credit, discrimination, disability services, health and privacy, etc. In Western Australia, commercial tenancy cases are settled by Western Australia’s Department of Consumer and Employment Protection that oversees the following problem areas: consumer protection, labour relations, corporate services, energy safety, etc. Magistrates Court is also responsible for solving commercial tenancy disputes.

[1] Leases (Commercial and Retail) Act 2001 (ACT).

[2] Accommodation Providers Act (NT); Business Tenancies (Fair Dealings) Act (NT); Residential Tenancies Act (NT), and Retirement Villages Act (NT).