Administrative Decisions Tribunal: Retail Leases Division
What sort of matters are dealt with by the Retail leases Division?
Is my business covered by the Retail Leases Act?
What is a retail tenancy claim?
What are the Tribunal's powers in relation to retail tenancy claims?
What is an Unconscionable Conduct Claim?
What are the Tribunal’s powers in relation to unconscionable conduct claims?
Is there anything I have to do before I apply to the ADT?
Is there a monetary limit on the ADT?
How can I apply?
What information do I need when preparing an application to the ADT?
When should I lodge an application?
Is there a fee?
What happens after I fill in the form and send it to the ADT?
What do I need to do when corresponding with the Tribunal?
Who will hear my case?
What happens if I live in the country?
Can the ADT make a costs award?
Can I stop the Landlord from locking me out?
Can proceedings be removed to the Supreme Court?
What can I do if I don’t agree with the ADT’s decision?
How can I get more information?
What sort of matters are dealt with by the Retail leases Division?
The Retail Leases Division of the ADT hears retail tenancy claims and unconscionable conduct claims under section 71 and section 71A of the Retail Leases Act 1994 .
Is my business covered by the Retail Leases Act?
For the Retail Leases Act to apply you must answer ‘yes’ to the following questions:
Are the premises a retail shop?
Is the lease covered by the Act?
Where the premises are leased as a shop and a residence are the premises leased predominantly for a retail shop?
What is a retail tenancy claim?
The definition of a retail tenancy claim is found at section 70 of the Retail leases Act 1994.
In this Division a “retail tenancy claim” means any of the following:
(a) a claim in connection with a liability or obligation with which a retail tenancy dispute is concerned, being:
(i) a claim for payment of money (whether or not stated to be by way of debt, damages, restitution or refund),
(ii) a claim for relief from payment of a specified sum of money,
(iii) a claim for the doing of specified work or the provision of specified services,
(iv) a claim for the surrender of possession of specified premises,
(v) a claim for assignment of rights under a lease or for a declaration that a lessor is not entitled to withhold consent to an assignment of the rights of a lessee,
(vi) a claim for relief against forfeiture,
(vii) a claim regarding the rectification of the lease,
(viii) a claim regarding the invalidity of a lease for inconsistency with this Act or the regulations,
(ix) a claim for a declaration of the rights, obligations and liabilities of the parties under a lease,
(x) without limiting the generality of subparagraph (i), a claim for compensation under section 10,34,35 or 62E,
(xi) without limiting the generality of any other subparagraph, a claim with respect to the entitlement of a party or former party under a lease to receive payment of the whole or a part of a security bond,
(b) an application for the appointment by the Tribunal of a specialist retail valuer under section 19 or 31
(c) an application for the appointment by the Tribunal of two specialist retail valuers under section 32A,
(d) an application under section 19(3) or 31(3), or under those provisions as applied by section 32A, by a specialist retail valuer,
(e) a claim against a specialist retail valuer under s 19A(3) or 31A(3), or under those provisions as applied by section 32A, for compensation for loss or damage suffered as a consequence of the use or communication or divulging of information.
An application for the appointment of a sepecialist retail valuer under section 19 or 31 can only be made if the parties have failed to reach agreement on a valuer. Your application must include material showing that there is a genuine disagreement on this matter. If this material shows also that mediation is unlikely to resolve this disagreement, mediation by the Retail Tenancy Unit may not be required.
What are the Tribunal's powers in relation to retail tenancy claims?
Section 72 of the Retail Leases Act 1994 provides:
1. In proceedings for a retail tenancy claim lodged with the Tribunal under this Part, the Tribunal is empowered to make any one or more of the following orders that it considers appropriate:
(a) an order that a party to the proceedings pay money to a person specified in the order, whether by way of debt, damages or restitution, or refund any money paid by a specified person,
(b) an order that a specified amount of money is not due or owing by a party to the proceedings to a specified person, or that a party to the proceedings is not entitled to a refund of any money paid to another party to the proceedings,
(c) an order that a party to the proceedings:
(i) do any specified work or perform any specified service or any obligation arising under this Act or the terms of a lease, or
(ii) surrender possession of specified premises to another person, or
(iii) assign his or her or its rights under a lease to a specified person, or
(iv) do or perform, or refrain from doing or performing, any specified act, matter or thing,
(d) an order granting a party to the proceedings relief against forfeiture,
(e) an order, by consent of the parties, requiring the parties to the proceedings to rectify a lease,
(f) an order:
(i) declaring any provision made by a lease to be void for being inconsistent with this Act or the regulations, or
(ii) declaring that a lessor is not entitled to withhold consent to an assignment of the rights of a lessee, or
(iii) declaring the rights and liabilities of the parties under law, whether any consequential relief is or could be claimed or not, or
(iv) declaring that a party is or is not entitled to receive payment of the whole or a part of a security bond,
(g) such other order, in the nature of an interlocutory order of a kind referred to in paragraphs (a)–(f), as the Tribunal considers proper to be made in order to resolve or assist resolution of the dispute between the parties.
2. The Tribunal may make such ancillary orders as it considers necessary for the purpose of enabling an order under this section to have full effect.
3. The Tribunal may impose such conditions as it considers appropriate when making an order under this section.
4. The Tribunal may make an interim order under this section pending final determination of a claim, if it appears to the Tribunal desirable to do so.
The Tribunal may also award interest - see section 72A.
There are additional powers with regard to specialist retail valuers - see section 72AB.
What is an Unconscionable Conduct Claim?
You may bring an unconscionable conduct claim if you consider that the respondent, in the context of a retail lease transaction, has caused you financial loss by conduct such as the following:-
- relying unfairly on greater bargaining power in order to exert unfair pressure on you;
- using unfair tactics;
- unreasonable failing to tell you of intended conduct in the future that might damage your interests;
- in some other way acting in bad faith.
The notion of ‘unconscionable conduct’ is defined in section 62B of the Retail Leases Act 1994. It does not include failing to comply with a term of a lease or making a false statement to induce you to enter into a lease. If you consider that the respondent has acted in either or both of these ways, you should bring a retail tenancy claim.
What are the Tribunal’s powers in relation to unconscionable conduct claims?
The Tribunal’s powers in relation to unconscionable conduct claims in section 72AA are as follows:
(1) In proceedings for an unconscionable conduct claim lodged with the Tribunal under this Part, the Tribunal is empowered to make any one or more of the following orders that it considers appropriate:
(2) The Tribunal may make such ancillary orders as it considers necessary for the purpose of enabling an order under this section to have full effect.
(3) The Tribunal may impose such conditions as it considers appropriate when making an order under this section.
(4) The Tribunal may make an interim order under this section pending final determination of a claim, if it appears to the Tribunal desirable to do so.
The Tribunal may also award interest - see section 72A.
Is there anything I have to do before I apply to the ADT?
Yes, you must refer the dispute to the Registrar of the Retail Tenancy Unit for mediation. The Retail Tenancy Unit of Department of State and Regional Development and the Administrative Decisions Tribunal (ADT) work together to resolve retail tenancy disputes. First the Retail Tenancy Unit provides information and advice on retail lease matters. It also helps lessors and lessees in dispute to work towards solutions through mediation.
If you need any information or advice or are in dispute you can contact the Retail Tenancy Unit at:
Level 43
MLC Centre
Martin Place
SYDNEY NSW 2000
Telephone: 02 8222 4800
Freecall: 1300 795 534
Facsimile: 02 8222 4816
Then if you are unable to resolve your dispute, you can apply to the ADT under the Retail Leases Act 1994 to have your dispute heard before the Tribunal.
The Registrar of the Retail Tenancy Unit must certify in writing that mediation has failed before you can bring proceedings, other than interim proceedings in the ADT. If you do not refer the dispute to the Registrar of the Retail Tenancy Unit for mediation, you will have to satisfy the ADT that mediation by the Registrar is unlikely to resolve the dispute. You will have to provide reasons to support this assertion.
Is there a monetary limit on the ADT?
Yes, the ADT has no power to make an order in respect of a retail tenancy claim or an unconscionable conduct claim if the amount to be paid, or the amount declared not to be due or owing, or the value of work to be done would exceed $400,000.
How can I apply?
You can fill out an application form which is available on the internet or from the ADT registry. You cannot lodge the application through the internet or by facsimile. Please post or bring your application to the ADT registry.
What information do I need when preparing an application to the ADT?
The name and address of the other party (the lessor or lessee)
- The reasons for making the application
- The orders you are seeking from the ADT
- A copy of the Certificate from the Registrar of the Retail Tenancy Unit stating that mediation has failed or your reasons as to why the dispute is unlikely to be resolved by the Registrar.
When should I lodge an application?
The Retail Leases Act sets a time limit on lodging applications to the ADT.
Generally, a retail tenancy claim may not be lodged more than 3 years after the liability or obligation that is the subject of the claim arose.
Generally, an unconscionable conduct claim may not be lodged more than 3 years after the alleged unconscionable conduct occurred. The alleged conduct must also have occurred after 12 October 2001.
A retail tenancy claim or an unconscionable conduct claim may howver be lodged more than 3 years, but no later than 6 years, after the liability or obligation that is the subject of the claim arose, or the relevant conduct occurred, if the Tribunal makes an order to that effect.
Is there a fee?
Yes there is a filing fee. For a Retail Tenancy Claim the fee is $68.00. For an Unconscionable Conduct claim, the fee is $142.00.
What happens after I fill in the form and send it to the ADT?
In a few days you will receive a letter from the ADT, which tells you that the application has been received. There will also be some information about what happens next.
Usually, you will be given a date to attend the Tribunal at which time a member of the Tribunal will talk to you and the other party about the best way to deal with your application. This is called a directions hearing.
The Member may adjourn the matter and refer it to the Registrar of Retail Tenancy Unit for mediation before the matter is given a hearing date.
It might be necessary to list your application for a hearing before the Tribunal. The member of the Tribunal may require you to prepare some material before the hearing date.
What do I need to do when corresponding with the Tribunal?
All correspondence to the Tribunal in relation to current proceedings should be addressed to the Registrar of the Tribunal. Correspondence of this kind should not be addressed to a Member of the Tribunal. A copy of all correspondence sent to the Tribunal must also be sent to each other party of the proceedings. The author should record the fact that the correspondence has been sent to the other parties by writing cc: Name of party at the end of the letter. If it has not been copied to the other party, the author must explain in writing why this has not been done. The Registrar will decide how the correspondence is to be handled.
Who will hear my case?
A judicial member of the Tribunal will hear your case. In some instances, the judicial member may also sit with a member who has experience as a lessor and a member who has experience as a lessee.
In some cases the member will be able to give their decision at the end of the hearing. However, in other cases the member will require time to consider the matter and will give their decision at a later time.
What happens if I live in the country?
If you live outside the Sydney Metropolitan Area, the directions hearing can be conducted by telephone. In some cases, the hearing may also be conducted by telephone or the ADT may hold the hearing in a regional area of NSW.
Can the ADT make a costs award?
Each party to the proceedings is to bear its own costs however the Tribunal may award costs if it is satisfied that is it is fair to do so.
For furthr information on costs see s 88 of the ADT Act.
Can I stop the Landlord from locking me out?
Yes. This is called an ‘interim order’. You can apply even though you have not referred your dispute to the Registrar of the Retail Tenancy Unit for mediation. But after your application is heard, you are likely to be directed to attempt mediation in this way. The interim order application must be filed with an application for an original order and the appropriate fee must be paid.
You can fill out an application form which you can download the application from our Internet site, but you cannot lodge the application through the Internet. Please post or bring the application to the ADT Registry.
The application will be listed before a Tribunal Member or Members. You will be required to give a reason for asking for the interim order. The ADT will also seek the views of the other party before deciding whether to grant an interim order.
Can proceedings be removed to the Supreme Court?
Yes, see section 76A of the Retail Leases Act 1994.
What can I do if I don’t agree with the ADT’s decision?
In retail tenancy claims you may have the right of appeal to the Appeal Panel of the ADT from an order or other decision made by the Tribunal under the Retail Leases Act. The appeal may also extend to a review of the merits of the decision if leave is granted by the Appeal Panel.
How can I get more information?
Contact details of the Retail Tenancy Unit are:
Level 43
MLC Centre
Martin Place
SYDNEY NSW 2000
Telephone: 02 8222 4800
Freecall: 1300 795 534
Facsimile: 02 8222 4816
Click here for the Retail Tenancy Unit website
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